Case 4:22-cv-00290 Document 1 Filed on 01/28/22 in TXSD Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
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`4:22-cv-290
`Case No. _______________
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`PREPARED FOOD PHOTOS, INC. f/k/a
`ADLIFE MARKETING &
`COMMUNICATIONS CO., INC.,
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`Plaintiff,
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`v.
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`RR USA INVESTMENTS LLC,
`d/b/a DON JAVIER MEAT MARKET &
`TAQUERÍA,
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`Defendant.
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`COMPLAINT
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`Plaintiff Prepared Food Photos, Inc. f/k/a Adlife Marketing & Communications Co., Inc.
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`(“Plaintiff”) sues defendant RR USA Investments LLC, d/b/a Don Javier Meat Market & Taquería
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` (“Defendant”), and alleges as follows:
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`THE PARTIES
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`1.
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`Plaintiff is a corporation organized and existing under the laws of the State of
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`Florida with its principal place of business located in Palm Beach County, Florida.
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`2.
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`Defendant is a limited liability company organized and existing under the laws of
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`the State of Texas with its principal place of business located at 13526 Tidwell Road, Ste 500,
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`Houston, Texas 77044-1552. Defendant’s Agent for Service of Process is Javier H. Valdivieso-
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`Perry, 3611Barton Lane, Sugar Land, Texas 77479.
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`JURISDICTION AND VENUE
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`3.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
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`Case 4:22-cv-00290 Document 1 Filed on 01/28/22 in TXSD Page 2 of 18
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`1331 and 1338(a).
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`4.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§
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`1331 and 1338(a).
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`5.
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` This Court has personal jurisdiction over Defendant because it is a citizen and
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`resident of Texas and because it maintained sufficient minimum contacts with Texas such that the
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`exercise of personal jurisdiction over it would not offend traditional notions of fair play and
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`substantial justice.
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`6. Venue properly lies in this district pursuant to 28 U.S.C. § 1400(a) because
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`Defendant or its agents reside or may be found in this district. “It is well established that, for
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`purposes of Section 1400(a), a defendant ‘may be found’ in any district in which it is subject to
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`personal jurisdiction.” Isbell v. DM Records, Inc., No. 3:02-CV-1408-G, 2004 U.S. Dist. LEXIS
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`10394, at *41 (N.D. Tex. June 4, 2004) (“Because the court has determined that it has
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`personal jurisdiction over DM, DM ‘may be found’ in this district and venue is therefore proper.”).
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`I.
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`Plaintiff’s Business
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`FACTS
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`7.
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`Plaintiff is in the business of licensing high-end, professional photographs for the
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`food industry.
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`8.
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`Through its commercial website (www.preparedfoodphotos.com), Plaintiff offers
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`a monthly subscription service which provides access to/license of tens of thousands of
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`professional images.
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`9. As of the date of this pleading, Plaintiff charges its clients (generally, grocery
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`stores, restaurant chains, food service companies, etc.) a monthly fee of $999.00 for access to its
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`library of professional photographs.
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
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`10. Plaintiff does not license individual photographs or otherwise make individual
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`photographs available for purchase. Plaintiff’s business model relies on its recurring monthly
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`subscription service such that Plaintiff can continue to maintain its impressive portfolio.
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`11. Plaintiff owns each of the photographs available for license on its website and
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`serves as the licensing agent with respect to licensing such photographs for limited use by
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`Plaintiff’s customers. To that end, Plaintiff’s standard terms include a limited, non-transferable
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`license for use of any photograph by the customer only. Plaintiff’s license terms make clear that
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`all copyright ownership remains with Plaintiff and that its customers are not permitted to transfer,
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`assign, or sub-license any of Plaintiff’s photographs to another person/entity.
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`II.
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`The Work at Issue in this Lawsuit
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`12.
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`In 1997,
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`a professional photographer
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`created
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`a photograph
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`titled
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`“RawChickenTender005_ADL” (the “Work”). A copy of the Work is exhibited below.
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`13. The Work was registered by Plaintiff (pursuant to a work-for-hire agreement with
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`the author that transferred all rights and title in the photograph to Plaintiff) with the Register of
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
`
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`Case 4:22-cv-00290 Document 1 Filed on 01/28/22 in TXSD Page 4 of 18
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`Copyrights on January 23, 2017 and was assigned Registration No. VA 2-046-891. A true and
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`correct copy of the Certification of Registration pertaining to the Work is attached hereto as
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`Exhibit “A.”
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`14. Plaintiff is the owner of the Work and has remained the owner at all times material
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`hereto.
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`III. Defendant’s Unlawful Activities
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`15. Defendant owns and operates meat market, grocery store, and taqueria in Houston,
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`Texas.
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`16. Defendant advertises/markets its business primarily through its aforementioned
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`website
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`(https://donjaviermeatmarket.com/),
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`social
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`media
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`(e.g.
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`https://www.facebook.com/donjaviermeatmarket/?ref=page_internal), and other
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`forms of
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`advertising.
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`17. On a date after Plaintiff’s above-referenced copyright registration of the Work,
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`Defendant
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`published
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`the
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`Work
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`on
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`its
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`Facebook
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`page
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`(https://www.facebook.com/donjaviermeatmarket/photos/)
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`in connection with
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`the sale of
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`“Chicken Tenders”:
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
`
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`18. A true and correct copy of screenshots of Defendant’s website, displaying the
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`copyrighted Work, is attached hereto as Exhibit “B.”
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`19. The foregoing display of the Work on Defendant’s website was accessible and was
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`in fact accessed from persons in the State of Florida.
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`20. Defendant is not and has never been licensed to use or display the Work. Defendant
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`never contacted Plaintiff to seek permission to use the Work in connection with its Facebook
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`page/advertising or for any other purpose – even though the Work that was copied is clearly
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`professional stock photography that would put Defendant on notice that the Work was not intended
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`for public use.
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`21. Defendant utilized the Work for commercial use – namely, in connection with the
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`marketing of Defendant’s business and sale of chicken tenders.
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
`
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`22. Upon information and belief, Defendant located a copy of the Work on the internet
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`and, rather than contact Plaintiff to secure a license, simply copied the Work for its own
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`commercial use.
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`23. Through its ongoing diligent efforts to identify unauthorized use of its photographs,
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`Plaintiff first discovered Defendant’s unauthorized use/display of the Work in approximately
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`October of 2020. Following Plaintiff’s discovery, Plaintiff notified Defendant in writing of such
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`unauthorized use. To date, Plaintiff has been unable to negotiate a reasonable license for the past
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`infringement of her Work.
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`24. All conditions precedent to this action have been performed or have been waived.
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`COUNT I – COPYRIGHT INFRINGEMENT
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`25. Plaintiff re-alleges and incorporates paragraphs 1 through 24 as set forth above.
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`26. The Work is an original work of authorship, embodying copyrightable subject
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`matter, that is subject to the full protection of the United States copyright laws (17 U.S.C. § 101 et
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`seq.).
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`27. Plaintiff owns a valid copyright in the Work, having registered the Work with the
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`Register of Copyrights and owning sufficient rights, title, and interest to such copyright to afford
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`Plaintiff standing to bring this lawsuit and assert the claim(s) herein.
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`28. As a result of Plaintiff’s reproduction, distribution, and public display of the Work,
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`Defendant had access to the Work prior to its own reproduction, distribution, and public display
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`of the Work on its commercial website.
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`29. Defendant reproduced, distributed, and publicly displayed the Work without
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`authorization from Plaintiff.
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`30. By its actions, Defendant infringed and violated Plaintiff’s exclusive rights in
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
`
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`Case 4:22-cv-00290 Document 1 Filed on 01/28/22 in TXSD Page 7 of 18
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`violation of the Copyright Act, 17 U.S.C. § 501, by reproducing, distributing, and publicly
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`displaying the Work for its own commercial purposes.
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`31. Defendant’s infringement was willful as it acted with actual knowledge or reckless
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`disregard for whether its conduct infringed upon Plaintiff’s copyright. Notably, Defendant
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`protects its copyrighted material on its website by publishing a copyright management notice,
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`“Copyright © 2021 Don Javier Meat Market - All Rights Reserved” which asks others to respect
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`its intellectual property rights. Therefore, Defendant clearly understands that high-end food
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`photography is not generally available for free or that such can simply be copied from the internet.
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`32. Plaintiff has been damaged as a direct and proximate result of Defendant’s
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`infringement.
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`33.
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` Plaintiff is entitled to recover its actual damages resulting from Defendant’s
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`unauthorized use of the Work and, at Plaintiff’s election (pursuant to 17 U.S.C. § 504(b), Plaintiff
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`is entitled to recover damages based on a disgorgement of Defendant’s profits from infringement
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`of the Work, which amounts shall be proven at trial.
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`34. Alternatively, and at Plaintiff’s election, Plaintiff is entitled to statutory damages
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`pursuant to 17 U.S.C. § 504(c), in such amount as deemed proper by the Court.
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`35. Pursuant to 17 U.S.C. § 505, Plaintiff is further entitled to recover its costs and
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`attorneys’ fees as a result of Defendant’s conduct.
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`36. Defendant’s conduct has caused and any continued infringing conduct will continue
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`to cause irreparable injury to Plaintiff unless enjoined by the Court. Plaintiff has no adequate
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`remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a permanent injunction
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`prohibiting infringement of Plaintiff’s exclusive rights under copyright law.
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`WHEREFORE, Plaintiff demands judgment against Defendant as follows:
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
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`a. A declaration that Defendant has infringed Plaintiff’s copyrights in the Work;
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`b. A declaration that such infringement is willful;
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`c. An award of actual damages and disgorgement of profits as the Court deems proper or, at
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`Plaintiff’s election, an award of statutory damages for willful infringement up to
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`$150,000.00 for each infringement of the Work;
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`d. Awarding Plaintiff its costs and reasonable attorneys’ fees pursuant to 17 U.S.C. § 505;
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`e. Awarding Plaintiff interest, including prejudgment interest, on the foregoing amounts;
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`f. Permanently enjoining Defendant, its employees, agents, officers, directors, attorneys,
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`successors, affiliates, subsidiaries and assigns, and all those in active concert and
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`participation with Defendant, from directly or indirectly infringing Plaintiff’s copyrights
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`or continuing to display, transfer, advertise, reproduce, or otherwise market any works
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`derived or copied from the Work or to participate or assist in any such activity; and
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`g. For such other relief as the Court deems just and proper.
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`Demand For Jury Trial
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`Plaintiff demands a trial by jury on all issued so triable.
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`Dated: January 28, 2022.
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`COPYCAT LEGAL PLLC
`3111 N. University Drive
`Suite 301
`Coral Springs, FL 33065
`Telephone: (877) 437-6228
`dan@copycatlegal.com
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`By: /s/ Daniel DeSouza______
`Daniel DeSouza, Esq.
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`COPYCAT LEGAL PLLC
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (877) 437-6228
`
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