Case 1:18-cv-00790-KMW Document 15 Filed 04/10/18 Page 1 of 15
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`UNITED STATE DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`STEPHANIE SINCLAIR
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`Plaintiff,
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`v.
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`ZIFF DAVIS, LLC, and
`MASHABLE, INC.,
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`Defendants.
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`Civil Action No.: 1:18-cv-00790
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`DEMAND FOR JURY TRIAL
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`SECOND AMENDED COMPLAINT
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`COMES now the Plaintiff, Stephanie Sinclair, and alleges as follows:
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`I. INTRODUCTION
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`1.
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`This second amended complaint arises under the United States Copyright Act of
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`1976, as amended, 17 U.S.C. §§ 101 et. seq. (the “Copyright Act”) and has been amended and is
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`being filed with consent of Defendants.
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`2.
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`Plaintiff alleges Defendants are liable for direct and willful copyright
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`infringement in violation of 17 U.S.C. §§ 106 and 501.
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`II. PARTIES
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`3.
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`Plaintiff Stephanie Sinclair (“Sinclair”) is a citizen of the United States, a resident
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`of the state of New York, and maintains her principal place of business in the state of New York.
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`4.
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`Defendant Ziff Davis, LLC (“Ziff Davis”) is and was at all relevant times an
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`active foreign business corporation duly existing under the laws of the state of New York (NYS
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`DOS ID #: 4511407), with the business address: 28 East 28th Street, New York, NY 10016,
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`owning and operating a commercial website called “Mashable” at www.mashable.com.
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`5.
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`Defendant Mashable, Inc. (“Mashable”) is and was at all relevant times an active
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`foreign business corporation duly existing under the laws of the state of New York (NYS DOS
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`ID # 4553187), with the business address: 114 Fifth Avenue, 15th Floor, New York. NY, 10011,
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`operating a commercial website called “Mashable” at www.mashable.com and is upon
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`information wholly owned and controlled by Defendant Ziff Davis LLC.
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`III. JURISDICTION AND VENUE
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`6.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
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`1331 (federal question) and 28 U.S.C. § 1338 (copyrights).
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`7.
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`Venue is proper in the Southern District of New York pursuant to 28 U.S.C. §§
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`1391 because Defendants’ principle place of business can be found in this District. Additionally,
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`venue is proper in this District pursuant to 28 U.S.C. § 1400(a) (venue for copyright cases)
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`because all Defendants may be found in this District.
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`8.
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`This Court has in personam jurisdiction over Defendants because the Defendants
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`availed themselves of the privileges of conducting business in this district and the State of New
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`York and incurred a benefit from such infringement, thus it is reasonable for Defendants to
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`submit to the jurisdiction of a New York federal district court.
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`IV. FACTUAL BACKGROUND
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`9.
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`Plaintiff Sinclair is a freelance photojournalist well-known for gaining unique
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`access to the world’s most sensitive gender and human rights issues, such as female genital
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`mutilation, self-immolation, and, most notably, child marriage.
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`10.
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`Plaintiff Sinclair has spent significant time and money amassing her twenty-year
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`body of work, regularly risking life and limb to photograph people and events in dangerous
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`circumstances such as war zones and similarly hostile environments.
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`11.
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`Plaintiff Sinclair covered the United States’ invasion of Iraq as a unilateral (non-
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`embedded) journalist while an employee of the Chicago Tribune in 2003. She subsequently
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`moved to Iraq to continue covering the war as a freelance photojournalist. She later moved to
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`Beirut, Lebanon after covering the region for six years to New York, from where she continues
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`to operate and take assignments worldwide.
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`12.
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`Plaintiff Sinclair is a regular contributor to publications such as National
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`Geographic, the New York Times, the New York Times Magazine, Time, Newsweek, Stern, GEO,
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`and Marie Claire.
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`13.
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`Plaintiff Sinclair has partnered with many reputable and notable institutions and
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`organizations in her work on the issue of child marriage including the United Nations Population
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`Fund (UNFPA), the U.S. Department of State, USAID, the government of Canada, the UK’s
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`Department for International Development (DFID), Human Rights Watch, and Plan
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`International.
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`14.
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`Plaintiff Sinclair was a Pulitzer Prize winner in 2000 while working for the
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`Chicago Tribune, has been nominated for an Emmy Award, and has won numerous
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`photojournalism industry awards including an unprecedented three (3) Vias D’or and, most
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`recently, the International Women’s Media Foundation’s Anja Niedringhaus Courage in
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`Photojournalism Award.
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`15.
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`Plaintiff Sinclair regularly licenses her photographs to clients for use in reputable
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`journalistic publications and/or on websites. To this end, Plaintiff owns and maintains a
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`publically-searchable website (www.StephanieSinclair.com) to showcase her images and invites
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`offers from potential licensors. The fees collected from licensing constitute a sizeable portion of
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`Plaintiff’s income to support herself and her family.
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`16.
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`Defendant Ziff Davis LLC is a technologically-focused and sophisticated digital
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`media and advertising company in the business of producing and distributing audiovisual content
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`and selling advertising space, marketing, data, and licensing services on its own advertising
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`network (NetShelter), and across their online brands and print titles, which include PC Mag,
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`IGN, AskMen, Offers.com, Speetest, TechBargains, Mashable.com and more. According to its
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`public website, Defendant Ziff Davis publishes its content in twenty-five (25) languages across
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`one hundred and fourteen (114) countries.
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`17.
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`Among Defendant Ziff Davis’ media properties that it owns and/or controls is
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`Defendant Mashable Inc. (www.mashable.com), a media and entertainment platform. Mashable
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`operates on a variety of platforms, but their flagship property is its website, www.mashable.com.
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`On Mashable’s web site, it reads “Mashable is among the federally registered trademarks of Ziff
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`Davis, LLC and may not be used by third parties without explicit permission.”
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`18. When Defendant Mashable was sold to Defendant Ziff Davis in 2017 for at or
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`around $50 million, upon information and belief Defendant Mashable retained its legal status as
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`an independent entity. However, the obligatory legal notices published on www.mashable.com
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`(consisting of separate pages for “Privacy Policy”, “Terms of Use”, and “Cookie Policy”) each
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`redirect users to corresponding legal notices published on www.ZiffDavis.com, which detail
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`users’ legal relationship not with Defendant Mashable but with Defendant Ziff Davis. Included
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`among these legal notices is a Copyright Policy expressly directing copyright owners with
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`infringement claims to contact Ziff Davis’ designated copyright agent, Stephen Hicks at Ziff
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`Davis’ corporate address in New York City, or by email at “ZDLegal1@ziffdavis.com”. In other
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`words, Defendant Mashable does not maintain an agent at Mashable.com, but instead directs
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`copyright holders seeking redress for infringements made on www.mashable.com to Defendant
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`Case 1:18-cv-00790-KMW Document 15 Filed 04/10/18 Page 5 of 15
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`Ziff Davis’ website and Defendant Ziff Davis’ copyright agent working out of Defendant Ziff
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`Davis’ corporate offices.
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`19.
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`Further, Defendant Mashable’s entry with the U.S. Copyright Office’s DMCA
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`Designated Agent Directory (created pursuant to 17 U.S.C. §512 for the purpose of regulating
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`“safe harbor” protections for online “service provider” entities) for www.mashable.com lists as
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`Mashable’s official Service Provider: “Mashable. Inc., c/o Ziff Davis LLC, 28 East 28th Street,
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`Attn: Legal Department, New York, NY 10016”; and as Mashable’s official Designated Agent:
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`“Stephen Hicks, Ziff Davis, LLC, 28 East 28th Street, New York, NY 10016, Phone: 212-503-
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`3569, Email: legal@ziffdavis.com”. According to the Copyright office entry, this status is
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`currently active and has been in effect since January 22, 2018. For purposes of this second
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`amended complaint, Plaintiff is suing both Defendant Mashable, Inc. and Defendant Ziff Davis
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`as she alleges that Ziff Davis maintains control over Mashable, Inc. and holds itself out as
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`Mashable’s agent for copyright issues.
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`20.
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`Defendant Mashable’s website, www.mashable.com, currently garners over
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`1,300,000 unique daily viewers, and almost 2,000,000 daily page views according to website
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`traffic monitoring organization, Website Informer (www.websiteinformer.com). At the time of
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`this filing, Mashable also had over 6,700,000 followers of its English language Facebook page
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`and over 9,800,000 followers of its Twitter account.
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`21.
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`Defendant Ziff Davis generates revenue, in part, through advertisements and
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`targeted promotional placements on www.mashable.com and on its other branded media outlets.
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`As web traffic and download rates across these platforms increase, Defendant is able to charge
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`advertisers higher rates for placing advertisements in front of their millions of followers,
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`subscribers, downloaders, and public viewers.
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`Case 1:18-cv-00790-KMW Document 15 Filed 04/10/18 Page 6 of 15
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`22.
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`On or about March 11, 2016, Defendant Mashable. Inc., through employee or
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`agent SaVonne Anderson, contacted Plaintiff Sinclair via email and sought Plaintiff Sinclair’s
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`permission to license one of Plaintiff Sinclair’s images in an article on female photographers to
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`be published to www.mashable.com (emails identified as Exhibit “A” attached hereto). Plaintiff
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`Sinclair replied to Ms. Anderson the same day enquiring as to the amount for which Mashable
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`proposed to license one of her images. Ms. Anderson’s repied that Mashable would be offering
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`fifty ($50) dollars for the licensing rights to the image.
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`23.
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`Plaintiff Sinclair generally does not license her work for such a nominal amount
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`and other reasons, and did not communicate a reply to Ms. Anderson that she accepted
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`Mashable’s $50.00 offer for an image license.
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`24.
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`A few days later, on or about March 16, 2016, Mashable, without consent or
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`permission, published one of Plaintiff Sinclair’s copyrighted images in a listicle article about
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`female photographers on www.mashable.com, authored by the same SaVonne Anderson who
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`failed to obtain a license from Plaintiff.
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`25.
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`Beyond emails exchanged between Plaintiff Sinclair and Mashable’s employee,
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`Ms. Anderson, on March 11, 2016 (attached as Exhibit A), Plaintiff Sinclair clearly never
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`accepted Mashable’s offer regarding image licensing for this or any other Mashable article.
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`Thus, at no time prior to, concurrent with, or subsequent to publishing the article did Plaintiff
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`Sinclair give Ms. Anderson and Mashable permission to publish Plaintiff Sinclair’s copyrighted
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`image.
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`26.
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`About 20 months later on or about December 20, 2017, Plaintiff Sinclair
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`discovered that Defendant Mashable had improperly published Plaintiff’s copyrighted image in
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`the article on Defendant’s website, www.mashable.com, at the URL:
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`http://mashable.com/2016/03/19/female-photojournalists-social-justice/#RNOCt.k6Vgq3
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`(attached as Exhibit “B”). Plaintiff is unsure when her image was taken down, and may have
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`been after the initial complaint was filed.
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`27.
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`The nature of Defendant Ziff Davis’ use of Plaintiff Sinclair’s copyrighted photo
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`on www.mashable.com implies that Plaintiff gave Defendants permission to publish Sinclair’s
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`image, thereby damaging Plaintiff’s reputation as purveyor of high-quality images to high-end,
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`issue driven clients and partners (examples named above), and weakening Plaintiff’s bargaining
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`position in future licensing agreements with said clients.
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`28.
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`The article in question is attached in full (see Exhibit “C.”) and is what is known
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`as a “listicle.” Listicles are what reputable journalist describe as “clickbait,” most known for
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`content presented as a numbered series of easily-digestible “top 10 list” entries of text and/or
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`pictures designed as a substitute for reputable journalism. The business incentive of a listicle is
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`to drive user traffic to a website such as Mashable’s, thereby securing or increasing advertising
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`revenue for the website owner, regardless of editorial quality of the content, and often times the
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`company spending little to no money to procure the content.
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`29.
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`The Mashable article in question in Ex. C contains a “top 10” listicle of 10 female
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`journalists.
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`30.
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`Upon information and belief, Defendant Mashable uploaded from its server eight
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`(8) of the ten (10) images taken by the journalists referenced in the listicle, and two (2) of the ten
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`(10) images taken by the journalists (of which Plaintiff Sinclair was one) were caused to be
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`displayed by Defendant Mashable on its web site using an embedding code from the two (2)
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`journalist’s respective Instagram accounts.
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`31.
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`In other words, Defendant Mashable directly sought but failed to obtain
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`permission from Plaintiff to display Plaintiff’s copyrighted image on its web site, and instead
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`intentionally took and published Plaintiff’s image, violating the Copyright Act by affirmatively
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`choosing to deny Plaintiff’s exclusive right to display Plaintiff’s image via her Instagram
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`Account, (https://www.instagram.com/p/78NQaEiQOe/?hl=en&taken-by=stephsinclairpix)
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`(Exhibit “D”).
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`32.
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`Upon information and belief, Instagram.com is an unrelated third party platform
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`with no affiliation, partnership or licensing agreement of any kind with Defendants.
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`33.
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` Upon information and belief, Instagram uses a platform called an application
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`programming interface or “API” to allow third parties access to Instagram’s user content, so long
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`as the third parties follow Instagram’s Terms of Service and the law, including the Copyright
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`Act.
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`34.
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`Instagram hosted Plaintiff’s copyrighted image (Ex. “D”), and did not provide an
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`express or implied license or permission for Defendants to cause to be displayed Plaintiff’s
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`copyrighted image.
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`35.
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`The pertinent and relevant Instagram terms of service included under its General
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`Terms (https://www.instagram.com/about/legal/terms/api/) include:
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`a. 11. Comply with any requirements or restrictions imposed on usage of
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`Instagram user photos and videos ("User Content") by their respective owners.
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`You are solely responsible for making use of User Content in compliance with
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`owners' requirements or restrictions.
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`b. 12. Remove within 24 hours any User Content (Plaintiff’s image) or other
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`information that the owner asks you to remove.
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`c. 16. Don't use the Instagram API to simply display User Content, import or
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`backup content, or manage Instagram relationships, without our prior
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`permission.
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`d. 36. Comply with all applicable laws or regulations. Don't violate any rights
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`of any person, including but not limited to intellectual property rights,
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`rights of privacy, or rights of personality. Don't expose Instagram or people
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`who use Instagram to harm or legal liability.
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`. . .
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`Under Instagram’s terms on its web site section C. “Things you should know”
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`https://www.instagram.com/about/legal/terms/api/ (Attached as Exhibit “E”).
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`e. 8. Licensed Uses and Restrictions: The Instagram APIs [application
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`programming interface] are owned by Instagram and are licensed to you on a
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`worldwide (except as limited below), non-exclusive, non-sublicenseable basis
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`in accordance with these terms. Your license to the Instagram APIs continues
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`until it is terminated by either party. Please note that User Content is owned
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`by users and not by Instagram. All rights not expressly granted to you are
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`reserved by Instagram. (Emphasis Added).
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`36.
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`Upon information and belief, Defendants violated both the Copyright Act and the
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`Instagram terms when Defendants used a coding process to “embed” Plaintiff’s copyrighted
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`image on the Mashable.com web site despite knowledge that they did not have permission to use
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`any method, including “embedding,” to cause Plaintiff’s copyrighted image to be displayed.
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`37.
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`Embedding an image on a webpage is the act of a web site coder, in this case a
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`person published articles or blog posts on Mashable.com, and intentionally added a specific and
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`Case 1:18-cv-00790-KMW Document 15 Filed 04/10/18 Page 10 of 15
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`unique “embed” code to the HTML instructions that incorporates content (an image in this case)
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`hosted on a third-party server, such as Instagram.com, onto the target website, such as the
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`Mashable.com webpage.
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`38.
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`To embed Plaintiff’s image, Mashable’s coder or web designer would add an
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`“embed code” to the HTML instructions directing the browser of someone viewing the web
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`page, to the third-party Instagram server to retrieve Plaintiff’s image and cause the image to be
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`displayed on a particular Mashable.com web page.
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`39. Mashable’s “embed code” will then hyperlink (that is, create a link from one
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`place in a hypertext document to another in a different document) to the third-party website such
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`as Instagram, essentially opening a window to Plaintiff’s “embedded” image. The result being
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`that Mashable.com has caused Plaintiff’s image to be displayed in a seamlessly integrated
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`webpage even though Plaintiff’s underlying copyrighted image is hosted on Instagram.
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`40.
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`To the public user, one without any technically expertise would not know the
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`difference and more likely than not believe Mashable had published the image in question
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`without ever considering where the image was actually hosted.
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`41.
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`On or about January 19, 2018, Plaintiff Sinclair demanded Defendant Ziff Davis
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`to take down Plaintiff’s copyrighted image, plus reasonably compensate Plaintiff for the
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`intentional infringement of her copyrighted image.
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`42.
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`Defendant Ziff Davis, in a display of willful resistance, initially refused to remove
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`the image from www.mashable.com within even a reasonably time period despite being
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`reminded of and put on notice of the prior rejection of the licensing offer by Defendant Mashable
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`to Plaintiff.
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`43.
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`Defendant has refused to compensate Plaintiff for usage rights, which is evidence
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`of intentional infringement of Plaintiff’s copyrighted image given that Defendant Mashable was
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`on actual notice that it did not have permission to cause to be display Plaintiff’s copyrighted
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`image on the Mashable web site.
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`V. ALLEGATIONS
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`COUNT 1: INFRINGEMENT OF COPYRIGHTS (17 U.S.C. §§ 106, 501)
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`44.
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`Plaintiff incorporates herein by this reference each and every allegation contained
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`in each paragraph of this second amended complaint.
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`45.
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`Via the express representations made voluntarily and knowingly by Defendants
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`on the “Legal” portion of www.mashable.com and in the U.S. Copyright Office’s DMCA
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`Designated Agent Directory, Defendants have demonstrated sufficient intent to give authority to
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`Defendant Ziff Davis to act on behalf of Defendant Mashable on a variety of legal contexts
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`including copyright infringement claims made against Defendant Mashable, and that Defendant
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`Ziff Davis is the proper legal respondent for Defendant Mashable’s acts of copyright
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`infringement and/or other legal matters.
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`46.
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`Upon information and belief, these representations were made with both the intent
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`and the substantial certainty that a third party would rely on them in seeking legal recourse with
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`regard to an act of copyright infringement (or other legal transgression) by Defendant Mashable.
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`47.
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`Plaintiff is, and at all relevant times has been, the exclusive copyright owner
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`and/or licensee of exclusive rights under United States copyright with respect to a certain
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`copyrighted photographic image, including but not limited to the copyrighted image identified as
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`Exhibits “B”, “C”, “D”, “E” and attached as Exhibit “F”, which is the subject of a valid
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`Certificate of Copyright Registration issued by the Register of Copyrights (the “Copyrighted
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`Image”), identified as Exhibit “F” attached hereto, titled “Child, Bride, Mother/Child Marriage in
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`Guatemala,” holding Registration Number VA 1-986-057, with the effective date of October 23,
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`2015.
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`48.
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`Among the exclusive rights granted to Plaintiff under the Copyright Act are the
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`exclusive rights to reproduce the Copyrighted Image, display the Image and distribute the
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`Copyrighted Image to the public.
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`49.
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`Defendants infringed Plaintiff’s Copyrighted Image directly when Defendant
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`Mashable caused Plaintiff’s Copyrighted image to be displayed on Mashable’s website using the
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`Instagram API embedding code process, displaying the image to the public and/or making the
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`Copyrighted Image available for distribution as if Defendants had a valid license and permission
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`to use and display Plaintiff’s Image.
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`50.
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`Defendants have violated Plaintiff’s exclusive rights of reproduction, display and
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`distribution of her Copyrighted Image. Defendants’ actions constitute willful infringement of
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`Plaintiff’s copyrights and exclusive rights under copyright.
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`51.
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`Defendants’ actions infringed on Plaintiff’s Copyrighted Images and improperly
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`associated Plaintiff with Defendants’ brand.
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`52.
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`Defendants sought permission for the use of Plaintiff’s Copyrighted Image, but
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`Plaintiff rejected Defendants’ request pursuant to Plaintiff’s exclusive rights in the Copyrighted
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`Image.
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`53.
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`Nevertheless, Defendants published Plaintiff’s Copyrighted Image in defiance of
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`Plaintiff’s position, and in violation of Plaintiff’s exclusive rights.
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`54.
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`Plaintiff is informed and believes that the foregoing acts of infringement have
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`been willful and intentional, in total disregard of and with indifference to the rights of Plaintiff.
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`55.
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`Plaintiff is informed and believes that the foregoing acts of infringement have
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`helped bolster traffic to the Defendants’ website(s), thereby helping establish and/or increase
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`advertising rates on the website, resulting in a direct financial benefit to Defendants.
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`56.
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`As a result of Defendants’ infringement of Plaintiff’s copyrights and exclusive
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`rights under copyright, Plaintiff is entitled to statutory damages pursuant to 17 U.S.C. § 504(c)
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`for Defendants’ infringement of each of the Copyrighted Images. Plaintiff further is entitled to
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`attorney’s fees and costs pursuant to 17 U.S.C. § 505.
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`57.
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`In the event the subject image remains posted or associated with Defendants, the
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`conduct of Defendants are causing, unless enjoined and restrained by this Court, and will
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`continue to cause Plaintiff great and irreparable injury that cannot fully be compensated or
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`measured in money. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. §§ 502 and
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`503, Plaintiff is entitled to injunctive relief prohibiting Defendants from further infringing
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`Plaintiff’s copyrights, and ordering Defendants to destroy all copies of images made or used in
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`violation of Plaintiff’s exclusive rights and to remove any code which causes Plaintiff’s
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`copyrighted image from being displayed any site Defendants control.
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`VI. DAMAGES
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`58.
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`Defendants’ conduct caused actual damages and/or are liable for statutory
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`damages of up to $30,000.00 for each infringement or alternatively up to $150,000.00 for each
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`willful infringement) pursuant to 17 U.S.C. § 504.
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`VII. JURY TRIAL DEMANDED
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`59.
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`Pursuant to Fed. R. Civ. P. 38(b), Plaintiff respectfully demands a trial by jury of
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`all the claims asserted in this Complaint so triable.
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`Case 1:18-cv-00790-KMW Document 15 Filed 04/10/18 Page 14 of 15
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`VIII. RELIEF REQUESTED
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`60. WHEREFORE, Plaintiff respectfully requests that the Court enter judgment on
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`her behalf adjudging and decreeing that:
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`A.
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`For an injunction providing: “Defendant(s) shall be and hereby is enjoined from
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`directly or indirectly infringing Plaintiff’s rights under federal or state law in the
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`Copyrighted Images, whether now in existence or later created, that is owned or
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`controlled by Plaintiff (“Plaintiff’s Images”), including without limitation by using the
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`Internet or any online media distribution system to reproduce (i.e. download) any of
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`Plaintiff’s Images, to distribute (i.e. cause to be displayed) any of Plaintiff’s
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`Copyrighted Images, or to make any of Plaintiff’s Images available for distribution to
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`the public, except pursuant to a lawful license or with the express authority of Plaintiff.
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`Defendants also shall destroy all copies of Plaintiff’s Images that Defendants have
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`downloaded onto any computer hard drive or server and remove “embed code” pointing
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`to any Copyrighted Image from the internet that Defendants have control or ownership
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`interest in.”
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`B.
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`For Plaintiff to be awarded either: (i) Plaintiff’s actual damages and Defendants’
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`profits, gains, or advantages of any kind attributable to Defendants’ infringement of
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`Plaintiff’s Copyrighted Images; or (ii) alternatively, statutory damages of up to
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`$30,000.00 per infringement or up to $150,000.00 for each instance of willful
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`infringement of Plaintiff’s Copyrighted Images pursuant to 17 U.S.C. § 504.
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`C.
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`For Defendants to be required to account for all profits, income, receipts, or other
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`benefits derived by Defendants as a result of its unlawful conduct.
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`Case 1:18-cv-00790-KMW Document 15 Filed 04/10/18 Page 15 of 15
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`D.
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`For Plaintiff’s costs and expenses in this action, including all reasonable
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`attorney’s fees incurred herein, pursuant to 17 U.S.C. § 505.
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`E.
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`For Plaintiff to be awarded pre-judgment interest from the time of the
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`infringement.
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`For such other and further relief as the Court may deem just and proper.
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`F.
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`Dated: This 10th day of April 2018.
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`Respectfully submitted,
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`By: /s/ James Bartolomei Esq.
`__________________________________
`James Bartolomei Esq.
`Duncan Firm, P.A.
`Of Counsel
`900 S. Shackleford Road, Ste. 725
`Little Rock, Arkansas 72211
`501-228-7600 phone
`501-228-0415 fax
`jim@duncanfirm.com
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` and
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` Bryan D. Hoben, Esq.
` 420 S. Riverside Drive, Suite 158
` Croton on Hudson, NY 10520
` (347) 855-4008 phone
` (914) 992-7135 fax
` bryan@hobenlaw.com
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` Attorneys for Plaintiff Stephanie Sinclair
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`15
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