Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 1 of 13
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`UNITED STATES DISTRICT COURT,
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`DOUGLAS CAVANAUGH,
`an individual;
`
`Plaintiff,
`
`v.
`
`AMAZON.COM, INC., a
`Delaware corporation; and
`DOES 1–10;
`
`Defendants.
`
`
`
`Case No. 20-1765
`
`PLAINTIFF’S COMPLAINT FOR:
`1. COPYRIGHT INFRINGEMENT,
`and
`2. VICACRIOUS and/or
`CONTRIBUTORY COPYRIGHT
`INFRINGEMENT
`
`
`JURY TRIAL DEMANDED
`
`Plaintiff Douglas Cavanaugh (“Cavanaugh” or “Plaintiff”), by and through his undersigned
`
`attorneys, hereby prays to this honorable Court for relief based on the following:
`
`INTRODUCTION
`
`Plaintiff Douglas Cavanaugh is a Pennsylvania artist whose unique artwork incorporates
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`various Celtic and Nordic themes, including unique depictions of mythological creatures.
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`Cavanaugh’s livelihood is dependent on his ability to license his artwork and sell merchandise
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`

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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 2 of 13
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`
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`bearing his designs. Unfortunately, Cavanaugh’s artwork has been misappropriated and
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`incorporated into unauthorized apparel and personal accessory items being sold on Amazon.com,
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`Inc.’s (“Amazon”) website and marketplace, www.amazon.com (“Amazon Website”). Despite
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`Amazon’s receipt of a fully compliant takedown notice under the Digital Millennium Copyright
`
`Act (“DMCA”) from Plaintiff, Plaintiff’s copyrights continue to be infringed on the Amazon
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`Website. This action is brought to address Amazon’s failure to comply with the DMCA and the
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`resulting ongoing and willful infringement of Plaintiff’s rights in and to his artwork.
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`JURISDICTION AND VENUE
`
`1.
`
`2.
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`3.
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`This action arises under the Copyright Act of 1976, Title 17 U.S.C., §§ 101 et seq.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
`
`Defendant Amazon.com, Inc. is subject to personal jurisdiction in Washington
`
`because it maintains its principal place of business in this state, at 410 Terry Avenue North, Seattle,
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`Washington 98109.
`
`4.
`
`Venue in this judicial district is proper under 28 U.S.C. §§ 1391(b)(2) and (c)(2)
`
`because this is the judicial district in which a substantial part of the events giving rise to the claim
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`occurred and this is the jurisdiction in which Defendant may be found.
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`5.
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`Plaintiff Douglas Cavanaugh (“Plaintiff”) is an individual domiciled and residing
`
`PARTIES
`
`in Ferndale, Pennsylvania.
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`6.
`
`Upon information and belief, Defendant Amazon.com, Inc. is a corporation
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`organized and existing under the laws of the State of Delaware with its principal place of business
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`located in Seattle, Washington.
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 3 of 13
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`7.
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`Upon information and belief, Defendants DOES 1-5, inclusive, are manufacturers
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`and/or distributors of products offered for sale on the Amazon Website, which Defendants DOES
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`1-5 have manufactured, imported, supplied, and distributed apparel and other products bearing
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`unlawful reproductions of Plaintiff’s illustration titled “Fenrir: The Monster Wolf of Norse
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`Mythology” (the “Subject Work”) without Plaintiff’s consent, or have contributed to said
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`infringement. The true names, whether corporate, individual, or otherwise of Defendants DOES
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`1-5, inclusive, are presently unknown to Plaintiff, who therefore sues said Defendants by such
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`fictitious names and will seek leave to amend this complaint to show their true names and
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`capacities when the same have been ascertained.
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`8.
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`Upon information and belief, Defendants DOES 6-10, inclusive, are retailers and/or
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`vendors of products offered for sale on the Amazon Website, which Defendants DOES 6-10 have
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`displayed and distributed apparel and other products bearing unlawful reproductions of Plaintiff’s
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`illustration titled “Fenrir: The Monster Wolf of Norse Mythology” (the “Subject Work”) without
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`Plaintiff’s consent, or have contributed to said infringement. The true names, whether corporate,
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`individual, or otherwise of Defendants DOES 6-10, inclusive, are presently unknown to Plaintiff,
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`who therefore sues said Defendants by such fictitious names and will seek leave to amend this
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`complaint to show their true names and capacities when the same have been ascertained.
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`9.
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`Upon information and belief, and at all times relevant hereto, each of the
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`Defendants was the agent, affiliate, officer, director, manager, principal, alter-ego, and/or
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`employee of the remaining Defendants and was at all times acting within the scope of such agency,
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`affiliation, alter-ego relationship and/or employment; and actively participated in or subsequently
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`ratified and adopted, or both, each and all of the acts or conduct alleged, with full knowledge of
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`3
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`

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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 4 of 13
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`all the facts and circumstances, including, but not limited to, full knowledge of each and every
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`violation of Plaintiff’s rights and the damages to Plaintiff proximately caused thereby.
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`CLAIMS RELATED TO PLAINTIFF’S DESIGN
`“FENRIR: THE MONSTER WOLF OF NORSE MYTHOLOGY”
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`10.
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`Prior to the conduct complained of herein, Plaintiff composed the Subject Work –
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`an original two-dimensional artwork for use, license, and sale on t-shirts and other products. The
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`Subject Work was a creation of Plaintiff, and is, and at all relevant times was, owned exclusively
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`by Plaintiff.
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`11.
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`Plaintiff applied for a United States copyright registration for the Subject Work.
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`The resulting U.S. Copyright Registration No. VA 2-119-205 has an effective date of December
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`11, 2017. The Copyright Registration Certificate and accompanying deposit materials are annexed
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`hereto as EXHIBIT A.
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`12.
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` Prior to the acts complained of herein, Plaintiff posted the Subject Work onto his
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`website, www.CelticHammerClub.com, and offered it for sale on t-shirts and other products via
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`his own website, and also third party websites, including but not limited to, RedBubble.com and
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`TeePublic.com.
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`13.
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` Following Plaintiff’s publication and distribution of products bearing the Subject
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`Work, he discovered that certain entities and individuals had misappropriated the design and were
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`selling apparel and personal accessory products bearing illegal reproductions of the Subject Work
`
`on the Amazon Website.
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`14.
`
` Upon information and belief, and without Plaintiff’s authorization, Defendants
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`created, sold, manufactured, caused to be created, manufactured, imported and/or distributed,
`
`apparel and other products bearing designs which are identical to the Subject Work (“Infringing
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 5 of 13
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`Fenrir Product”). Below is a comparison of the Subject Work and one exemplar of Infringing
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`Fenrir Product:
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`The Subject Work
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`Infringing Fenrir Product Exemplar
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`15.
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`The above comparison clearly shows that the elements, composition, colors,
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`arrangement, layout, and appearance of the designs at issue are substantially similar and/or
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`identical.
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`16.
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`The above exemplar is non-inclusive, and the allegations set forth herein are as to
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`the entire universe of product sold by Defendants, and each of them, that bear a design similar to
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`the Subject Work.
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`17.
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` On October 14, 2020, Plaintiff submitted a notice of copyright infringement to
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`Amazon’s legal department, in compliance with the Digital Millennium Copyright Act
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`5
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 6 of 13
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`(“DMCA”). The notice was submitted via email to Amazon’s registered copyright agent at
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`copyright@amazon.com. A copy of the DMCA notice is annexed hereto as EXHIBIT B.
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`18.
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` The notice alerted Amazon to fifty-one (51) Amazon Website listings offering
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`infringing products and requested removal of all 51 listings. In response, Plaintiff received an
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`automated message confirming Amazon’s receipt of Plaintiff’s DMCA notice. Plaintiff received
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`no further communication from Amazon regarding these listings, and, to date, 24 out of the 51
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`infringing links remain active. Screen captures of each of the infringing links, taken on November
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`24, 2020, in Google Chrome’s “Incognito Mode,” are annexed hereto as EXHIBIT C. As of the
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`date of this Complaint, the listings remain active.
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`19.
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` Upon information and belief, Defendants, and each of them, have committed
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`copyright infringement with actual or constructive knowledge of Plaintiff’s rights, and/or in blatant
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`disregard of Plaintiff’s rights, such that said acts of copyright infringement were, and continue to
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`be, willful, intentional and malicious, subjecting Defendants, and each of them, to liability for
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`statutory damages under Section 504(c)(2) of the Copyright Act in the sum of up to one hundred
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`fifty thousand dollars ($150,000.00) per infringement.
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`DMCA SAFE HARBOR PROTECTION
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`20.
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`As a party that asserts that it is an online service provider who hosts content for
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`third parties, Amazon regularly claims protection under the safe harbor provisions of the Digital
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`Millennium Copyright Act, 17 U.S.C. § 512.
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`
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`21.
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`Upon information and belief, Amazon can remove each link for infringing product
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`that is hosted on the Amazon Website.
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`6
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 7 of 13
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`22.
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`Amazon has registered an agent with the United States Copyright Office for receipt
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`of DMCA notices.
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`23.
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`Plaintiff submitted a DMCA-compliant notice to Amazon requesting removal of
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`links to infringing products and received the following automated response shortly after submitting
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`his DMCA-compliant notice: “We received your email. Amazon respects the intellectual property
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`rights of others. After we process your notice, we will notify you by email. This usually takes 1 to
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`2 days.”
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`24.
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`Plaintiff never authorized the infringing uses of the Subject Work, as set forth
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`above.
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`25.
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`Plaintiff’s DMCA notice to Amazon contained a total of 51 links to infringing
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`products being sold. Over one month later, 24 listings remain active.
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`26.
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`Annexed hereto as EXHIBIT D is the October 14, 2020 DMCA notice, with the
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`currently active listings highlighted. The fact that some listings were removed, but not others,
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`demonstrates that Amazon reviewed the DMCA notice and then cherry-picked which listings it
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`would remove.
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`27.
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`Aside from Amazon’s automated response email, Amazon has not contacted
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`Plaintiff regarding his DMCA notice.
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`28.
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`Because Amazon has failed to respond to Plaintiff’s DMCA notice expeditiously,
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`it cannot claim protection under the DMCA’s Safe Harbor as contemplated by 17 U.S.C. § 512.
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`FIRST CLAIM FOR RELIEF
`(For Copyright Infringement – Against All Defendants, and Each)
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`29.
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`Plaintiff repeats, realleges, and incorporates the allegations contained in the
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`preceding paragraphs of this Complaint as if fully set forth herein.
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 8 of 13
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`30.
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`31.
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`32.
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`Plaintiff is, and at all relevant times has been, the owner of the Subject Work.
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`The Subject Work is copyrightable subject matter under 17 U.S.C. § 102(a)(5).
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`Plaintiff has complied in all respects with the provisions and requirements of the
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`Copyright Act.
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`33.
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`Plaintiff duly registered the copyright to the Subject Work with the United States
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`Copyright Office prior to the acts complained of herein.
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`34.
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`Plaintiff has exclusive rights under 17 U.S.C. § 106 to reproduce, prepare derivative
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`works of, distribute copies of, and publicly display the Subject Work.
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`35. Without Plaintiff’s authorization, the Subject Work was reproduced on products
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`and were publicly displayed on, and distributed via, the Amazon Website.
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`36.
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`Defendants, and each of them, had actual knowledge of the infringement of
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`Plaintiff’s copyrights.
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`37.
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`Plaintiff provided notice to Amazon in compliance with the DMCA and Amazon
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`failed to expeditiously disable access to or remove at least 24 infringing links on the Amazon
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`Website.
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`38.
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`39.
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`Amazon had actual knowledge of the infringing listings on the Amazon Website.
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`In failing to disable and/or remove the infringing links from the Amazon Website
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`after receipt of Plaintiff’s DMCA notice, Amazon acted willfully as contemplated by 17 U.S.C.
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`§ 504(c)(2).
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`40.
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`Amazon directly infringed Plaintiff’s copyrights by continuing to allow public
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`access to the infringing links on the Amazon Website and/or Amazon’s server or on servers
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`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`8
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 9 of 13
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`controlled by Amazon or through access controlled by Amazon to third-party servers, and by
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`continuing to allow sales of a vast array of infringing products.
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`41.
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`Upon information and belief, Defendants, and each of them, had access to the
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`Subject Work through, without limitation, accessing the Subject Work (a) on Plaintiff’s website;
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`(b) on various websites authorized to sell products bearing the design, including without limitation
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`RedBubble.com and TeePublic.com; and (c) through third-party manufacturers and/or vendors of
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`authorized product. Access is also established by the striking similarity between the Subject Work
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`and the corresponding artwork on Defendants’, and each of their, infringing products.
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`42.
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`Upon
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`information and belief, one or more of
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`the DOE Defendant
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`manufacturers/distributors has an ongoing business relationship with DOE Defendant retailers,
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`and each of them, and supplied products to said retailers, which products infringed the Subject
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`Work in that said products featured unauthorized print design(s) that were identical or substantially
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`similar to the Subject Work, or were an illegal derivation or modification thereof.
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`43.
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`Upon information and belief, Defendants, and each of them, infringed Plaintiff’s
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`copyrights by creating, making, and/or developing directly infringing and/or derivative works from
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`the Subject Work and by producing, distributing and/or selling apparel and/or other products which
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`infringe the Subject Work through Amazon’s nationwide network.
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`44.
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`Due to Defendants’ acts of infringement, Plaintiff has suffered substantial damages
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`to his business, including without limitation, lost profits and lost licensing revenue, in an amount
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`to be established at trial.
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`45.
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`Due to Defendants’ acts of infringement, Plaintiff has suffered general and special
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`damages in an amount to be established at trial.
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`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`9
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 10 of 13
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`46.
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`Due to Defendants’ acts of copyright infringement as alleged herein, Defendants,
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`and each of them, have obtained direct and indirect profits they would not otherwise have realized
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`but for their infringement of the Subject Work. As such, Plaintiff is entitled to disgorgement of
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`Defendants’ profits directly and indirectly attributable to Defendants’ infringement of Plaintiff’s
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`rights in the Subject Work in an amount to be established at trial.
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`47.
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`Plaintiff is informed and believes and thereon alleges that Defendants, and each of
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`them, have committed acts of copyright infringement, as alleged above, which were willful,
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`intentional and malicious, which further subjects Defendants, and each of them, to liability for
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`statutory damages under Section 504(c)(2) of the Copyright Act in the sum of up to one hundred
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`fifty thousand dollars ($150,000.00) per infringement. Within the time permitted by law, Plaintiff
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`will make his election between actual damages and statutory damages.
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`SECOND CLAIM FOR RELIEF
`(For Vicarious and/or Contributory Copyright Infringement – Against All Defendants, and Each)
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`48.
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`Plaintiff repeats, realleges, and incorporates the allegations contained in the
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`preceding paragraphs of this Complaint as if fully set forth herein.
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`49.
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`Upon information and belief, Defendants, and each of them, knowingly induced,
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`participated in, aided and abetted in and profited from the illegal reproduction and/or subsequent
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`sales of apparel and other products featuring the Subject Work, as alleged herein.
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`50.
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` Upon information and belief, Defendants, and each of them, are vicariously liable
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`for the infringement alleged herein because they had the right and ability to supervise the infringing
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`conduct and because they had a direct financial interest in the infringing conduct.
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`51.
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` By reason of the Defendants’ acts of contributory and vicarious infringement as
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`alleged above, Plaintiff has suffered and will continue to suffer substantial damages to his business
`
`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`10
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`in an amount to be established at trial, as well as additional general and special damages in an
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`amount to be established at trial.
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`52.
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` Due to Defendants’ acts of copyright infringement as alleged herein, Defendants
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`have obtained direct and indirect profits they would not otherwise have realized but for their
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`infringement of the Subject Work. 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
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`Subject Work, in an amount to be established at trial.
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`53.
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` Upon information and belief, Defendants, and each of them, have committed acts
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`of copyright infringement, as alleged above, which were willful, intentional and malicious, which
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`further subjects Defendants to liability for statutory damages under Section 504(c)(2) of the
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`Copyright Act in the sum of up to one hundred fifty thousand dollars ($150,000.00) per
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`infringement. Within the time permitted by law, Plaintiff will make his election between actual
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`damages and statutory damages.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff requests judgment against each Defendant as follows:
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`A. that the Court enter judgment against Defendant setting forth that Defendant has infringed
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`Plaintiff’s federally registered copyright to the Subject Work, as contemplated by 17
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`U.S.C. §501;
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`B. that each Defendant and its respective agents, officers and servants be enjoined from
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`importing, manufacturing, creating derivative works, publishing, displaying, distributing,
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`offering for sale, selling or otherwise trafficking in any materials that infringe Plaintiff’s
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`copyrights in and to the Subject Work;
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`COMPLAINT
`
`Case No. 20-1765
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`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
`
`11
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 12 of 13
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`. impounding all unauthorized material that bears infi'inging copies of the Subject Work in
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`the possession or control of Defendants pursuant to 17 U.S.C. §503(a)(1)(A), and ordering
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`destruction of all unauthorized material bearing the Works, pursuant to 17 U.S.C. §503(b);
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`. that Plaintiff be awarded all profits of Defendants plus all losses of Plaintiff, the exact sum
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`to be proven at the time of trial, or, if elected before final judgment, statutory damages as
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`available under 17 U.S.C. § 504(c);
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`. that Plaintiff be awarded his attorneys’ fees as available under 17 U.S.C. § 505;
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`. that Plaintiff be awarded pie-judgment interest as allowed by law;
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`. that Plaintiff be awarded the costs of this action; and
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`. that Plaintiff be awarded such furpther legal and equitable relief as the Court deems proper.
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`PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE PURSUANT
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`TO FED. R. CIV. P. 38 AND THE 7TH AMENDMENT TO THE UNITED STATES
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`CONSTITUTION.
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`DATED: November 30, 2020
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`Respectfufly submitted,
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`THE JA OB FREEMAN LAW FIRM, PLLC
`
`\
`. a
`
`By
`z
`JacBKP. reeman, WSBA #54123
`415 1st Avenue N No. 9466
`Seattle, Washington 98109
`Tel.: (206) 350-1066
`Fax: (206) 350-1120
`Email: jfieeman@j flpllc.com
`
`COMPLAINT
`
`Case No. 20-1765
`
`Ilia Jacob Freeman Law Firm. rm
`415 15: Avenue N | No. 9466
`Seattle, Washington | 98109
`«.1: 206-350-1066 I fax: 206-350-1120
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`Case 2:20-cv-01765 Document 1 Filed 11/30/20 Page 13 of 13
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`
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`DANCHUK LAW, LLC
`
`
`By: /s/ Dmitry Lapin
`
`Dmitry Lapin, Esq.
`(Pro hac vice application forthcoming)
`2 Victoria Lane
`Falmouth, Maine 04105
`Tel.: (207) 464-0099
`Email: dmitry@emilyesquire.com
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`Attorneys for Plaintiff Douglas Cavanaugh
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`COMPLAINT
`
`Case No. 20-1765
`
`
`
`The Jacob Freeman Law Firm, PLLC
`415 1st Avenue N | No. 9466
`Seattle, Washington | 98109
`tel: 206-350-1066 | fax: 206-350-1120
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