Case 1:21-cv-04892 Document 1 Filed 06/02/21 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`NICK ONKEN, an individual,
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` Case No.: 1:21-cv-4892
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`Plaintiff,
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`v.
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` PLAINTIFF’S COMPLAINT FOR
` COPYRIGHT INFRINGEMENT
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`HEARST COMMUNICATIONS, INC.,
`a Delaware Corporation, doing business
`as, “Cosmopolitan Italia”; DOES 1-10;
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` JURY TRIAL DEMANDED
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`Defendants.
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` Plaintiff, by and through his undersigned attorneys, hereby prays to this
`honorable Court for relief based on the following:
`JURISDICTION AND VENUE
`1. This action arises under the Copyright Act of 1976.
`2. This Court has jurisdiction under 28 U.S.C. § 1331 and 1338 (a) and (b).
`3. Venue is proper under 28 U.S.C. § 1391(c) and 1400(a) because a substantial
`part of the acts and omissions giving rise to the claims occurred here.
`PARTIES
`4. Plaintiff is an individual based in New York, New York.
`5. Plaintiff is informed and believes and thereon alleges that Defendant
`HEARST COMMUNICATIONS, INC. does business in and with the state of New
`York and this District. It does business under “Cosmopolitan Italia” with a
`principal place of business at 300 West 57th St., New York, New York 10019.
`6. Defendants Does 1 through 10, inclusive, are other parties not yet identified
`who have infringed Plaintiff’s copyrights, have contributed to the infringement of
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`Plaintiff’s copyrights, or have engaged in one or more of the wrongful practices
`alleged herein. Their true names, whether corporate, individual or otherwise, are
`presently unknown to Plaintiff, who therefore sues said Defendants by such
`fictitious names, and will seek leave to amend this Complaint to show their true
`names and capacities when same have been ascertained.
`7. Plaintiff is informed and believes and thereon alleges that at all times
`relevant hereto each of the Defendants was the agent, affiliate, officer, director,
`manager, principal, alter-ego, and/or employee of the remaining Defendants and
`was at all times acting within the scope of such agency, affiliation, alter-ego
`relationship and/or employment; and actively participated in or subsequently
`ratified and adopted, or both, each and all of the acts or conduct alleged, with full
`knowledge of all the facts and circumstances, including, but not limited to, full
`knowledge of each and every violation of Plaintiff’s rights and the damages to
`Plaintiff proximately caused thereby.
`8. Onken is an accomplished and critically acclaimed photographer, podcast
`host, and creative entrepreneur. He has photographed individuals such as Justin
`Bieber, Tom Hanks, and Jessica Alba, and has been featured in Fast Company,
`Huffington Post and MTV. Not only has he travelled to over sixty countries and
`seven continents taking these acclaimed photographs, but he also authored a travel
`photography book. His work for international brands such as Nike, Coca Cola, and
`Adidas has been featured in published magazines such as Conde Nast Traveler,
`Cosmopolitan, and Marie Claire.
`9. Plaintiff created and exclusively owns the photography depicted in Exhibit A
`attached hereto. These works will be called the “Subject Photography” herein.
`10. Plaintiff has registered the Subject Photography with the Copyright Office
`under the registration number VA 2-160-484.
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`11. Defendants, and each of them, have willfully copied, reproduced, displayed,
`and distributed the Infringing Content for financial benefit and without Plaintiff’s
`consent, at and on websites bearing the URL(s) depicted in Exhibit B hereto. Said
`material will be referred to as “Infringing Content” herein.
`12. Plaintiff did not consent to the aforementioned use of the Subject
`Photography.
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`FIRST CLAIM FOR RELIEF
`(For Copyright Infringement – Against all Defendants, and Each)
`13. Plaintiff repeats, re-alleges, and incorporates herein by reference as though
`fully set forth, the allegations contained in the preceding paragraphs.
`14. Plaintiff alleges on information and belief that Defendants, and each of
`them, accessed the Subject Photography by without limitation, viewing the Subject
`Photography on Plaintiff’s website or social media profiles, on other sites online,
`or in physical publications. The identicality of the copying also show access.
`15. Plaintiff alleges on information and belief that Defendants, and each of
`them, copied, reproduced, displayed, and distributed the Subject Photography
`online at and on websites as seen in the screen captures and/or bearing the URL(s)
`depicted in Exhibit B hereto.
`16. Plaintiff alleges on information and belief that Defendants, and each of
`them, infringed Plaintiff’s copyrights by creating infringing derivative works from
`the Subject Photography and publishing same to the public.
`17. Due to Defendants’, and each of their, acts of infringement, Plaintiff has
`suffered general and special damages in an amount to be established at trial.
`18. Due to Defendants’ acts of copyright infringement as alleged herein,
`Defendants, and each of them, have obtained direct and indirect profits they would
`not otherwise have realized but for their infringement of Plaintiff’s rights in the
`Subject Photography. As such, Plaintiff is entitled to disgorgement of Defendants’
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`profits directly and indirectly attributable to Defendants’ infringement of Plaintiff’s
`rights in the Subject Photography in an amount to be established at trial.
`19. Plaintiff alleges on information and belief that Defendants, and each of
`them, have committed acts of copyright infringement, as alleged above, which
`were willful, intentional and malicious, which further subjects Defendants, and
`each of them, to liability for statutory damages under Section 504(c)(2) of the
`Copyright Act in the sum of up to $150,000.00 per infringement and/or a
`preclusion from asserting certain equitable and other defenses.
`SECOND CLAIM FOR RELIEF
`(For Vicarious and/or Contributory Copyright Infringement – Against all
`Defendants, and Each)
`20. Plaintiff repeats, re-alleges, and incorporates herein by reference as though
`fully set forth, the allegations contained in the preceding paragraphs.
`21. Plaintiff alleges on information and belief that Defendants knowingly
`induced, participated in, aided and abetted in and profited from the illegal
`reproduction and distribution of the Subject Photography as alleged hereinabove.
`Such conduct included, without limitation, publishing photographs obtained from
`third parties that Defendant(s) knew, or should have known, were not authorized to
`be published by Defendant(s); publishing the Infringing Content on affiliate, third-
`party, and social media sites; and distributing the Infringing Content to third-
`parties for further publication.
`22. Plaintiff alleges on information and belief that Defendants, and each of
`them, are vicariously liable for the infringement alleged herein because they had
`the right and ability to supervise the infringing conduct and because they had a
`direct financial interest in the infringing conduct. Specifically, Defendants, and
`each of them, received revenue in connection with the Infringing Content, and
`were able to supervise the distribution, broadcast, and publication of said content.
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`23. By reason of the Defendants’, and each of their, acts of contributory and
`vicarious infringement as alleged above, Plaintiff has suffered general and special
`damages in an amount to be established at trial.
`24. Due to Defendants’ acts of copyright infringement as alleged herein,
`Defendants, and each of them, have obtained direct and indirect profits they would
`not otherwise have realized but for their infringement of Plaintiff’s rights in the
`Subject Photography. As such, Plaintiff is entitled to disgorgement of Defendants’
`profits directly and indirectly attributable to Defendants’ infringement of their
`rights in the Subject Photography, in an amount to be established at trial.
`25. Plaintiff alleges on information and belief that Defendants, and each of
`them, have committed acts of copyright infringement, as alleged above, which
`were willful, intentional and malicious, which further subjects Defendants, and
`each of them, to liability for statutory damages under Section 504(c)(2) of the
`Copyright Act in the sum of up to $150,000.00 per infringement and/or a
`preclusion from asserting certain equitable and other defenses.
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`THIRD CLAIM FOR RELIEF
`(For Violations of the 17 U.S.C. §1202 – Against all Defendants, and Each))
`26. Plaintiff repeats, re-alleges, and incorporates herein by reference as though
`fully set forth, the allegations contained in the preceding paragraphs.
`27. The Subject Photography was routinely published with attribution, credit,
`and other copyright management information identifying Plaintiff as the author,
`28. Plaintiff alleges on information and belief that Defendants, and each of
`them, removed Plaintiff’s copyright management information, as described above,
`from the Subject Photography, and/or added false copyright management
`information to the Subject Photography, before distributing and publishing same.
`29. Plaintiff alleges on information and belief that Defendants, and each of
`them, distributed and published the Subject Photography via websites bearing the
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`URL(s) depicted in Exhibit B hereto, under its own name, and removing
`Plaintiff’s attribution information, including without limitation his name and/or
`metadata.
`30. The aforementioned facts constitute “copyright management information”
`as that phrase is defined in 17 U.S.C. § 1202(c) and is false.
`31. When Defendants distributed and published the Subject Photography, they
`knowingly provided and/or distributed false copyright management information in
`violation of 17 U.S.C. § 1202(a). As a result of the foregoing, Plaintiff has been
`damaged and may recover those damages as well as Defendants’ profits, and/or
`statutory damages, and attorneys’ fees under 17 U.S.C. § 1203.
`PRAYER FOR RELIEF
`Wherefore, Plaintiff prays for judgment as follows:
`Against all Defendants, and Each, with Respect to Each Claim for Relief:
`a. That Defendants, and each of them, as well as their employees, agents, or
`anyone acting in concert with them, be enjoined from infringing Plaintiff’s
`copyrights in the Subject Photography, including without limitation an order
`requiring Defendants, and each of them, to remove any content incorporating, in
`whole or in part, the Subject Photography from any print, web, or other publication
`owned, operated, or controlled by any Defendant.
`b. That Plaintiff be awarded all profits of Defendants, and each of them, plus all
`losses of Plaintiff, plus any other monetary advantage gained by the Defendants,
`and each of them, through their infringement, the exact sum to be proven at the
`time of trial, and, to the extent available, statutory damages as available under the
`17 U.S.C. § 504 and other applicable law.
`c. That a constructive trust be entered over any revenues or other proceeds
`realized by Defendants, and each of them, through their infringement of Plaintiff’s
`intellectual property rights;
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`d. That Plaintiff be awarded his attorneys’ fees as available under the Copyright
`Act U.S.C. § 505 and/or §1203;
`d. That Plaintiff be awarded his costs and fees;
`e. That Plaintiff be awarded statutory and enhanced damages;
`f. That Plaintiff be awarded pre-judgment interest as allowed by law; and
`h. That Plaintiff be awarded further legal and equitable relief as deemed proper.
` Plaintiff demands a jury trial on all issues so triable pursuant to Fed. R.
`Civ. P. 38 and the 7th Amendment to the United States Constitution.
` Respectfully submitted,
`Dated: June 2, 2021
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` By: /s/ Scott Alan Burroughs
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`Scott Alan Burroughs, Esq.
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`Laura M. Zaharia, Esq.
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`DONIGER / BURROUGHS
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`231 Norman Avenue, Suite 413
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`Brooklyn, New York 11222
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`(310) 590-1820
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`scott@donigerlawfirm.com
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`lzaharia@donigerlawfirm.com
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`COMPLAINT
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`Case 1:21-cv-04892 Document 1 Filed 06/02/21 Page 8 of 8
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`EXHIBIT A
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`EXHIBIT B
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`[https://www.cosmopolitan.com/moda/tendenze/a114519/occhiali-da-sole-tendenze-2016/]
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