Case 1:20-cv-00004-RP Document 1 Filed 01/02/20 Page 1 of 6
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`CIVIL ACTION NUMBER
`
`1:20-cv-00004
`
`JURY
`
`VICTOR BAKER, d/b/a ONE TREASURE LIMITED, §
`and ONE TREASURE LTD.,
`§
`Plaintiff,
`
`V.
`
`PENGUIN RANDOM HOUSE, L.L.C., f/k/a
`RANDOM HOUSE, INC., d/b/a RANDOM
`HOUSE FILMS,
`
`AMAZON TECHNOLOGIES, INC., d/b/a
`PRIME VIDEO and AMAZON PRIME, and
`
`NETFLIX, INC., d/b/a NETFLIX,
`Defendants
`
`§§
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`COMES NOW PLAINTIFF, Victor Baker, d/b/a One Treasure Limited and One Treasure
`
`Ltd. (“One Treasure Limited”), and files this its Original Complaint, complaining of
`
`DEFENDANTS, Penguin Random House, L.L.C., f/k/a Random House, Inc., d/b/a Random
`
`House Films (“Random House Films”), Amazon Technologies, Inc., d/b/a Prime Video and
`
`Amazon Prime (“Amazon”), and Netflix, Inc., d/b/a Netflix (“Netflix”), and in support thereof
`
`would show as follows:
`
`I. PARTIES
`
`1.
`
`Plaintiff is an individual doing business as One Treasure Limited and One
`
`Treasure Ltd., residing and with his principal place of business in Austin, Travis County, Texas.
`
`2.
`
`Defendant, Penguin Random House, L.L.C., is a foreign corporation organized
`
`under the laws of the State of Delaware, and can be served with process through its registered
`
`agent, Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808..
`
`F:\Clients\19000 C-19600-01-19999-003\19632 - Baker, Vic General File - Destroyed 8-29-19\19632.019 - baker - curacao\Movie
`Litigation\PLEADINGS\ORIGINAL COMPLAINT - jmw.doc - JMW
`
`Page 1 of 6
`
`

`

`Case 1:20-cv-00004-RP Document 1 Filed 01/02/20 Page 2 of 6
`
`
`
`3.
`
`Defendant, Amazon Technologies, Inc., is a foreign corporation organized under
`
`the laws of the State of Nevada, and can be served with process through its registered agent,
`
`Corporation Service Company, 112 North Curry Street, Carson City, Nevada 89703.
`
`
`
`4.
`
`Defendant, Netflix, is a foreign corporation organized under the laws of the State
`
`of Delaware, and can be served through its registered agent, The Corporation Trust Company,
`
`Corporation Trust Center, 1209 Orange St., Wilmington, Delaware 19801.
`
`II. JURISDICTION & VENUE
`
`
`
`5.
`
`This action arises under the Copyright Act of 1976, Title 17, United States Code,
`
`and subject matter jurisdiction is founded on Title 28, United States Code § 1338(a).
`
`
`
`6.
`
`This Court has general jurisdiction over Defendants because they do business in
`
`this State. Specifically, Random House Films produces films and other video productions in
`
`association with others for distribution to end consumers throughout Texas, including in the
`
`Western District of Texas. Amazon and Netflix distribute those films and productions to
`
`consumers in the Western District of Texas. Amazon also maintains extensive facilities in the
`
`Western District of Texas for the distribution of goods and services purchased by consumers
`
`through its website, www.amazon.com.
`
`
`
`7.
`
`This Court also has specific jurisdiction over Defendants. Specifically, Random
`
`House Films produced the film containing the infringing material more specifically described
`
`below, with the expectation it would be distributed throughout Texas, including the Western
`
`District of Texas, both in theaters, as well as through DVD and Blu-ray discs and internet
`
`streaming services. Netflix and Amazon distributed the film within the Western District of
`
`Texas in disc form and through internet streaming services.
`
`
`
`8.
`
`For the same reasons justifying jurisdiction in this State, venue is conferred in this
`
`
`F:\Clients\19000 C-19600-01-19999-003\19632 - Baker, Vic General File - Destroyed 8-29-19\19632.019 - baker - curacao\Movie
`Litigation\PLEADINGS\ORIGINAL COMPLAINT - jmw.doc - JMW
`
`Page 2 of 6
`
`

`

`Case 1:20-cv-00004-RP Document 1 Filed 01/02/20 Page 3 of 6
`
`judicial district by Title 28, United States Code, Section 1400(a).
`
`III. FACTS COMMON TO ALL CAUSES OF ACTION
`
`
`
`9.
`
`Plaintiff is engaged in the business of creating, producing, and marketing antique-
`
`style, watercolor maps of the Caribbean islands and other locations around the World. These
`
`maps are primarily sold as large printed copies of their respective originals to tourists in the areas
`
`they depict.
`
`
`
`10.
`
`Plaintiff is the owner of the copyright in a map entitled “Curacao,” a copy of
`
`which is attached as Exhibit A. The map is registered with the U.S. Copyright Office,
`
`registration number VA 1-738-444, with an effective date of registration of April 13, 2009.
`
`
`
`11.
`
`Defendant, Penguin Random House, L.L.C., formerly known as Random House,
`
`Inc., operates a unit under the name Random House Films. It participated in production of a film
`
`entitled “Lay the Favorite,” including world-famous actors, Bruce Willis, Vince Vaughn, and
`
`Catherine Zeta-Jones. The film purports to be based on a true story involving the sports-betting
`
`industry. Part of the film is based on the Caribbean island of Curacao, where the characters
`
`locate their sports gambling operation to circumvent United States gambling laws. Plaintiff’s
`
`map of Curacao is displayed prominently in several scenes, tacked to the wall of the office in
`
`which gambling operations take place. These scenes include two of the film’s major characters,
`
`including Vince Vaughn. Still images from the movie showing use of the map are attached at
`
`Exhibit B. In this regard, the map plays a significant role in the movie, emphasizing the storyline
`
`that the characters have located their gambling operation in Curacao.
`
`
`
`12.
`
`Defendant, Amazon, is in the business of, among other things, distributing movies
`
`through digital discs its internet streaming service known as Amazon Prime and Prime Video. It
`
`has in the past and continues to offer Lay the Favorite through both digital discs and its
`
`
`F:\Clients\19000 C-19600-01-19999-003\19632 - Baker, Vic General File - Destroyed 8-29-19\19632.019 - baker - curacao\Movie
`Litigation\PLEADINGS\ORIGINAL COMPLAINT - jmw.doc - JMW
`
`Page 3 of 6
`
`

`

`Case 1:20-cv-00004-RP Document 1 Filed 01/02/20 Page 4 of 6
`
`streaming service.
`
`
`
`13.
`
`Defendant, Netflix, is also in the business of distributing movies through its
`
`internet streaming service. It has in the past, and as late as November 2019, offered Lay the
`
`Favorite through its streaming service. It is believed Netflix also distributed the movie through
`
`digital discs before it ended the service.
`
`
`
`
`
`14.
`
`One Treasure Limited never authorized use of Curacao in the movie.
`
`IV. CAUSES OF ACTION
`
`A) COPYRIGHT INFRINGEMENT.
`
`15.
`
`Defendants’ use of Curacao constitutes an infringing act or series of actions as
`
`defined and as actionable under the federal Copyright Act of 1976, Title 17, United States Code.
`
`B) DAMAGES
`
`
`
`16.
`
`Plaintiff is entitled to the statutory damages set forth in 17 United States Code,
`
`Section 504(c). Specifically, Plaintiff is entitled to a minimum of $750.00 and a maximum of
`
`$30,000.00 for said use.
`
`
`
`17.
`
`In addition, Defendants’ infringement of Curacao was willful in that they had
`
`actual knowledge of Plaintiff’s ownership of it, or acted in reckless disregard of the possibility
`
`that their use would infringe Plaintiff’s copyright. Specifically, Random House Films knew or
`
`reasonably should have known that Plaintiff owned the map from the contact information in its
`
`bottom-left corner because his contact information is visible in the still images from the movie at
`
`Exhibit B. Random House Films is in the film business, is very aware of the need to obtain
`
`clearance from owners of intellectual property used in their films, and, yet, wholly failed to
`
`attempt to do so. For said willful infringement, Plaintiff is entitled to recover up to $150,000.00.
`
`
`
`18.
`
`In the alternative to recover of statutory damages, Plaintiff seeks damages
`
`
`F:\Clients\19000 C-19600-01-19999-003\19632 - Baker, Vic General File - Destroyed 8-29-19\19632.019 - baker - curacao\Movie
`Litigation\PLEADINGS\ORIGINAL COMPLAINT - jmw.doc - JMW
`
`Page 4 of 6
`
`

`

`Case 1:20-cv-00004-RP Document 1 Filed 01/02/20 Page 5 of 6
`
`measured by the fair-market, license fee for the map. Plaintiff is further entitled to any profits
`
`made by Defendants from their infringing acts. Both measures of damages are prescribed by 17
`
`United States Code Annotated, Section 504(b).
`
`
`
`19.
`
`Plaintiff contends all Defendants are jointly and severally liable for any damages
`
`awarded for use of Curacao. Specifically, Defendants are joint tortfeasors and Plaintiff may
`
`recover from them the entirety of the damages caused by and awarded based on the other’s
`
`actions.1 Defendants are also jointly and severally liable for any profits awarded to the extent
`
`any two or more Defendants acted in concert to infringe Curacao.2
`
`C) INJUNCTIVE RELIEF
`
`
`
`20.
`
`Pursuant to 17 U.S.C.A. § 1498, Plaintiff further requests that Defendants be
`
`permanently enjoined from distributing the movie with scenes displaying the map.
`
`
`
`21.
`
`In support of its request, Plaintiff would show that it has an inadequate remedy at
`
`law for Defendants’ continuing infringement of the maps, even following an award of damages
`
`in this case. In particular, were Defendants to continuing their infringing activity, Plaintiff
`
`would be required to repeatedly sue them for damages. Irreparable harm exists justifying
`
`injunctive relief when a multiplicity of suits is the only method by which a party can obtain relief
`
`for an injury to his property rights.3
`
`D) ATTORNEY’S FEES.
`
`
`
`22.
`
`Plaintiff is entitled to recovery of its costs and attorneys’ fees reasonably incurred
`
`in pursuit of this action as set forth by 17 United States Code Annotated §505.
`
`
`1 Salton, Inc. v. Philips Domestic Appliances and Personal Care B.V., 391 F.3d 871, 877 (7th Cir.
`2004) (holding that “[u]nder the principle of joint and several liability, which governs not only the
`common law tort of misappropriation of trade secrets but also the federal statutory tort of copyright
`infringement [citations omitted] the victim of a tort is entitled to sue any of the joint tortfeasors and
`recover his entire damages from that tortfeasor.”).
`2 Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 519 (9th Cir. 1985).
`
`
`F:\Clients\19000 C-19600-01-19999-003\19632 - Baker, Vic General File - Destroyed 8-29-19\19632.019 - baker - curacao\Movie
`Litigation\PLEADINGS\ORIGINAL COMPLAINT - jmw.doc - JMW
`
`Page 5 of 6
`
`

`

`Case 1:20-cv-00004-RP Document 1 Filed 01/02/20 Page 6 of 6
`
`V. JURY DEMAND
`
`23.
`
`Plaintiff demands trial by jury as to this action.
`
`PRAYER
`
`WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendants be cited
`
`
`
`
`
`to appear and answer herein, and that upon final trial, Plaintiff have the following:
`
`
`
`
`
`a) Such damages as Plaintiff has sustained in consequence of Defendants’
`infringement of Plaintiff’s copyright, and an accounting for all gains, profits,
`and advantages derived by Defendants through such infringement;
`
`
`b) In the alternative, Plaintiff seeks statutory damages as set forth by 17
`U.S.C.A. §504(c), as well as an increase in said award for Defendant’s willful
`infringement of same;
`
`c) Attorneys’ fees and costs reasonably incurred as provided by 17 U.S.C.A.
`§505; and,
`
`d) such other and further relief to which Plaintiff may be justly entitled.
`
`
`
`
`
`
`
`Respectfully submitted,
`
`BLAZIER, CHRISTENSEN, BIGELOW
` & VIRR, P.C.
`Attorneys and Counselors at Law
`901 S. Mopac Expy., Bldg. V, Ste. 200
`Austin, Texas 78746
`512.476.2622
`jwelch@blazierlaw.com
`
`___________________________________
`JUSTIN M. WELCH
`Texas State Bar No.: 24003876
`ATTORNEYS FOR PLAINTIFF
`
`
`3 Braniff Airways, Incorporated v. Toren, 50 B.R. 393, 402 (N.D.Tex. 1984).
`
`
`F:\Clients\19000 C-19600-01-19999-003\19632 - Baker, Vic General File - Destroyed 8-29-19\19632.019 - baker - curacao\Movie
`Litigation\PLEADINGS\ORIGINAL COMPLAINT - jmw.doc - JMW
`
`Page 6 of 6
`
`