Case 1:20-cv-04025 Document 1 Filed 05/24/20 Page 1 of 8
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`Richard M. Garbarini (RG 5496)
`GARBARINI FITZGERALD P.C.
`250 Park Ave, 7th Floor
`New York, New York 10177
`Phone: (212) 300-5358
`Fax: (888) 265-7054
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`Attorney for Plaintiff
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`SIMON J. BURCHETT PHOTOGRAPHY, INC.,
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`Plaintiff,
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`PIEONEERS SOFTWARE, INC.,
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`Defendant.
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`Case No.: 20-cv-4025
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`ECF CASE
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`COMPLAINT AND JURY DEMAND
`FOR DAMAGES FOR COPYRIGHT
`INFRINGEMENT
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`Plaintiff SIMON J. BURCHETT PHOTOGRAPHY, INC., by and through the
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`undersigned counsel, brings this Complaint and Jury Demand against defendant PIEONEERS
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`SOFTWARE, INC., for damages based on copyright infringement pursuant to the Copyright Act
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`and Copyright Revisions Act, 17 U.S.C. §§ 101, et seq. (“the Copyright Act” or “Act”) and the
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`Digital Millennium Copyright Act, 17 U.S.C. §§ 1201-05 (the “DMCA”). Plaintiff alleges
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`below, upon personal knowledge as to itself, and upon information and belief as to other matters
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`so indicated.
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`JURISDICTION AND VENUE
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`1.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal
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`question jurisdiction) and 1338(a) (jurisdiction over copyright actions).
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`2.
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`This Court has specific jurisdiction over the defendant this matter pursuant to
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`CPLR§ 302(a)(3)(ii) as defendant is a nondomiciliary who committed a tortious act without the
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`state causing injury to person or property within the state, and it expected or should reasonably
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`have expected the act to have consequences in the state and it derives substantial revenue from
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`interstate or international commerce.
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`3.
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`Defendant is a domiciliary of Canada, and copied, published, and publicly
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`displayed plaintiff’s Copyrighted Image without a license or authority.
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`4.
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`Defendant continued to publicly display the Copyrighted Image on its website
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`after notice.
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`5.
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`6.
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`Defendant derives substantially all of its revenue from international commerce.
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`This Court has jurisdiction pursuant to Federal Rule 4(k)(2) as defendant is not
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`subject to jurisdiction in any state's courts of general jurisdiction; and exercising jurisdiction is
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`consistent with the United States Constitution and laws.
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`VENUE
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`7.
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`A plaintiff may bring a case in: “(2) a judicial district in which a substantial part
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`of the events or omissions giving rise to the claim occurred. . . ;or (3) if there is no district in
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`which an action may otherwise be brought . . . a judicial district in which any defendant is
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`subject to the court’s personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(1)-
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`(3).
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`8.
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`At bar, a substantial part of the events or omissions giving rise to the claim
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`occurred in this Judicial District.
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`DUE PROCESS
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`9.
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`There are no due process concerns in light of the fact that defendant committed an
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`intentional tort knowing it would have an impact in this Judicial District.
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`PARTIES
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`10.
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`Plaintiff SIMON J. BURCHETT PHOTOGRAPHY, INC. is a New York
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`corporation with a headquarters located in Manhattan, New York.
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`11.
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`Upon information and belief, defendant PIEONEERS SOFTWARE, INC.
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`(“PIEONEERS”), is a foreign corporation with a headquarters located 950 – 777 Hornby Street,
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`Vancouver, BC V6Z 1S4.
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`FACTS
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`12.
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`Plaintiff is the beneficial owner, by assignment, of the copyrighted image at issue
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`here which is an aerial image of the container ship the CSCL Zeebrugge titled “_L4A3135” of
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`the containership CSCL Zeebrugge, U.S. Copyright Registration No. VA 2-036-532 (the
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`“Copyrighted Image”). See Exhibit 1.
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`13.
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`A true and correct copy of the Copyrighted Image appears below.
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`14.
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`Plaintiff is owned solely by Simon Burchett, a world-renowned photographer who
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`has been honored with many awards and accolades.
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`15. Mr. Burchett is accredited as a master photographer by the Master Photographers
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`Association (the “MPA”) in England. To become accredited, a photographer must: (i) have
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`professional liability insurance, (ii) show a substantial history of professional work, (iii) provide
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`a detailed client list, (iv) produce a curriculum vitea, and (iv) pass an interview.
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`16.
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`In July 2019, Mr. Burchett won the very prestigious Gold Medal at the MPA’s
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`professional photographers’ competition. This is a national competition conducted by the MPA
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`which is open to all professional photographers. There are in excess of 1,000 images submitted
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`to each competition.
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`17.
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`Another image taken by plaintiff received a Silver Medal at the Master
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`Photographers Association competition in 2018.
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`18. Defendant is a web developer and mobile app. designer.
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`19. Defendant engaged as its agent, San Francisco based Stage 3 to produce the
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`below web-page:
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`20. Defendant was notified on five separate occasions of its infringement.
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`21.
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`22.
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`Defendant responded with a litany of excuses, necessitating the within action.
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`Defendant copied, distributed, and publicly displayed plaintiff’s Copyrighted
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`Image with no license or authority.
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`23.
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`Defendant’s use of the Copyrighted Image was, and is, purely commercial.
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`24.
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`Defendant’s blatant failure to license the Copyrighted Image prior to its
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`commercial use, after notice, entitles plaintiff to the right to elect enhanced statutory damages
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`pursuant to 17 U.S.C. 504(c)(2).
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`25.
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`Defendant’s blatant failure to license the Copyrighted Image prior to its
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`commercial use, after notice, entitles plaintiff to enhanced damages pursuant to 17 U.S.C.
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`504(c)(2).
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`26.
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`Plaintiff has suffered significant injuries due to defendant’s acts. Plaintiff is
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`entitled to its actual damages including a licensing fee of $3,000 per year from defendant for the
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`three years prior to this Complaint. Plaintiff is also entitled to defendant’s profit in excess of
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`plaintiff’s actual damages.
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`27.
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`Defendant’s failure to include any copyright management information is a
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`violation of 17 U.S.C. § 1202 – the DMCA. Plaintiff is entitled to up to $25,000 for each
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`violation of the DMCA pursuant to Section 1203 of the DMCA plus all reasonable attorneys’
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`fees and costs.
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`FIRST CLAIM FOR RELIEF
`COPYRIGHT INFRINGEMENT
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`28.
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`Plaintiff incorporates the allegations contained in the preceding paragraphs as if
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`set forth here at length here.
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`29.
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`It cannot be disputed that the plaintiff has a valid, registered copyright, and owns
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`all rights to the Copyrighted Image.
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`30.
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`Defendant without license or authority from plaintiff, reproduced, publicly
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`displayed, and/or distributed plaintiff’s Copyrighted Image.
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`31.
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`Defendant copied and publicly displayed the Copyrighted Image solely for the
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`purpose of commercial gain.
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`32.
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`33.
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`Defendant refused to cease and desist after a demand from plaintiff’s counsel.
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`Should plaintiff elect an award of statutory damages, only an award at the top of
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`the statutory scale will serve as a deterrent to defendant.
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`34.
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`At all times relevant to this Complaint, defendant’s uses of the Copyrighted
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`Image were not used for criticism, comment, news reporting, teaching, scholarship, or research.
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`35.
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`36.
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`At all times relevant to this Complaint, defendant’s uses were not transformative.
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`Defendant elected to reproduce, distribute, and/or publicly display plaintiff’s
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`Copyrighted Image, using the entirety of the image, without a license.
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`37.
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`As a direct and proximate result of defendant’s infringement of plaintiff’s
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`exclusive rights to the Copyrighted Image as set forth in Section 106 of the Act, plaintiff has
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`incurred damages, and requests an award of plaintiff’s actual damages, and defendant’s profits in
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`excess of plaintiff’s actual damages. Plaintiff may also elect to recover a statutory damage
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`award. Defendant’s acts were in reckless disregard of plaintiff’s rights, and plaintiff is entitled to
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`enhanced damages of up to $150,000 pursuant to 17 U.S.C. § 504(c)(2).
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`SECOND CLAIM FOR RELIEF
`VIOLATION OF DMCA OF 1998, AS AMENDED,
`17 U.S.C. §§ 1201-05.
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`Plaintiff incorporates the allegations contained in the preceding paragraphs as if
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`38.
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`set forth at length here.
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`39.
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`Section 1202 provides in part: (b) [n]o person shall, without the authority of the
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`copyright owner or the law - (1) intentionally remove or alter any copyright management
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`information, [or] (3) distribute . . . works [or] copies of works . . . knowing that copyright
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`management information has been removed or altered without authority of the copyright owner
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`or the law, knowing, or having reasonable grounds to know, that it will induce, enable, facilitate,
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`or conceal an infringement of any right under this title. 17 U.S.C. § 1202(b).
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`40.
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`The DMCA states: “[d]efinition.—As used in this section, the term ‘copyright
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`management information’ means any of the following information conveyed in connection with
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`copies or phonorecords of a work or performances or displays of a work, including in digital
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`form, except that such term does not include any personally identifying information about a user
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`of a work or of a copy, phonorecord, performance, or display of a work: (1) The title and other
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`information identifying the work, including the information set forth on a notice of copyright. (2)
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`The name of, and other identifying information about, the author of a work. (3) The name of, and
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`other identifying information about, the copyright owner of the work, including the information
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`set forth in a notice of copyright. (4) . . . the name of, and other identifying information about, a
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`performer whose performance is fixed in a work other than an audiovisual work. (5) . . . the
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`name of, and other identifying information about, a writer, performer, or director who is credited
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`in the audiovisual work. (6) Terms and conditions for use of the work. (7) Identifying numbers
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`or symbols referring to such information or links to such information. (8) Such other information
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`as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights
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`may not require the provision of any information concerning the user of a copyrighted work.” 17
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`U.S.C. § 1202(c); S.Rep. No. 105-190 (1988), note 18.
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`41.
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`Plaintiff always distributes its copyrighted images, including the Copyrighted
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`Image here, with embedded copyright management information which includes the title of the
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`image, author, label, and copyright owner.
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`42.
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`Defendant removed plaintiff’s copyright management information (“CMI”), and
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`copied, publicly displayed, and/or distributed the Copyrighted Image without this CMI.
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`43.
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`44.
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`Defendant did the forgoing with the intent to conceal the infringement.
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`Plaintiff seeks award of statutory damages for each violation of Section 1202 of
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`the DMCA in the sum of $25,000.
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`PRAYER FOR RELIEF
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`WHEREFORE, plaintiff prays for judgment against defendant, and awarding plaintiff as
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`follows:
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`1.
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`2.
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`4.
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`6.
`7.
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`restitution of defendant’s unlawful proceeds in excess of plaintiff’s
`compensatory damages;
`compensatory damages in an amount to be ascertained at trial;
`a statutory damage award, including all penalties authorized by the Copyright
`Act (17 U.S.C. §§ 504(c)(1), 504(c)(2));
`an award of up to $25,000 in statutory damages for each violation by defendant
`of the DMCA, 17 U.S.C. § 1202;
`the reasonable attorneys’ fees and costs incurred by plaintiff in this action (17
`U.S.C. § 505);
`pre- and post-judgment interest to the extent allowable; and,
`such other and further relief that the Court may deem just and proper.
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`JURY DEMAND
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`Plaintiff hereby demands a trial by jury of all issues so triable.
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`Dated: May 24, 2020
`New York, New York
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`GARBARINI FITZGERALD P.C.
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` By:
` Richard M. Garbarini (RG 5496)
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`8
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