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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
Ian Mattlock Moore §
§
Plaintiff, § No. 3:14-cv-00836-JRS
§
v. §
§
HorrorHound Ltd, LLC §
§ JURY TRIAL DEMANDED
Defendant. §
§
§
PLAINTIFF’S SECOND AMENDED ORIGINAL COMPLAINT
COMES NOW, Plaintiff Ian Mattlock Moore (“Plaintiff”), by counsel, pursuant to
Federal Rules of Civil Procedure 15(a)(2) and the Court’s Order Granting Leave to Amend, and
files Plaintiff’s Second Amended Original Complaint against Defendant HorrorHound Ltd, LLC
(“Defendant”), alleging as follows:
PARTIES
1. Plaintiff, Ian Mattlock Moore is a citizen and resident of Maidens, Virginia. He is
a well-known expert in the field of horror films.
2. Upon information and belief, Defendant HorrorHound Ltd, LLC, is an Ohio
limited liability company with a business address of 1197 Muirwood Lane, Batavia, Ohio 45103.
Defendant publishes a magazine entitled HorrorHound marketed to fans of horror culture,
including movies, television programs, toys and collectible items.
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JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction over trademark infringement arising
under the Lanham Act pursuant to 15 U.S.C. § 1125(a) and 28 U.S.C. §§ 1331, 1338(a). This
Court has subject matter jurisdiction over copyright infringement arising under the Copyright
Act of the United States pursuant to 17 U.S.C. §§ 106, 501 and 28 U.S.C. § 1338(a). This Court
has subject matter jurisdiction over the declaratory judgment action pursuant to 28 U.S.C. §
2201. This Court has supplemental jurisdiction over Plaintiff’s related state and common law
claims pursuant to 28 U.S.C. §§ 1138 and 1367(a).
4. This Court has personal jurisdiction over Defendant because, on information and
belief, Defendant has distributed or sold infringing merchandise within this District, has
distributed or sold infringing merchandise to various companies with the knowledge that those
companies sell merchandise in retail stores in Virginia, has engaged in acts or omissions outside
of Virginia causing injury within Virginia, has manufactured or distributed products in Virginia
causing injury within Virginia, has distributed products used or consumed within Virginia in the
ordinary course of trade, or has otherwise made or established contacts with Virginia sufficient
to permit the exercise of personal jurisdiction.
5. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of
the events or omissions giving rise to Plaintiff’s claims occurred in this District.
6. In accordance with Local Civil Rule 3, filing in the Richmond Division is proper
for the same reasons venue in the Eastern District is proper, namely that a substantial part of the
events or omissions giving rise to Plaintiff’s claims occurred in this Division.
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COMMON FACTS
7. Plaintiff’s reputation as an expert in the history, and collectability of, horror films
precedes him. He is well-known within the horror culture community as the primary catalyst for
the “craze” of collecting Video Home System (“VHS”) horror films.
8. In 2008, Plaintiff conceived, developed, wrote, designed, and was the creative
force behind a series of articles entitled “Video Invasion,TM
” which were published in
Defendant’s HorrorHound magazine.
9. The series focused on the rise of the Video Home System (VHS) in America and
chronicled the many producers of horror-themed movies. Plaintiff’s series was featured in
Defendant’s HorrorHound magazine from Issue 12, published in July, 2008, through Issue 39,
published in January, 2013.
10. In total, Plaintiff was responsible for twenty-six articles for the VIDEO
INVASIONTM
series. In addition, Plaintiff authored numerous other articles for Defendant,
including an article entitled “The Prowler,” published in Issue 22, and an article entitled “Tech
Specs European Invasion,” published in Issue 25.
11. Each VIDEO INVASIONTM
article that Plaintiff penned combined Plaintiff’s text
with his layout and design, which was unique to the VIDEO INVASIONTM
series. This
combination was intended to, and did, constitute a single unitary whole in the form of a final
published article.
12. Fans of HorrorHound magazine have especially loved the VIDEO INVASIONTM
series. In 2009, Plaintiff was nominated for a Rondo Hatton Classic Horror Award and was
named Runner-Up for certain of VIDEO INVASIONTM
articles. Later, in 2013, Plaintiff was
interviewed for the documentary “Adjust Your Tracking” regarding the VHS culture. One
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 3 of 24 PageID# 323
4
commentator on the documentary stated that Plaintiff was “well-known as the HorrorHound
columnist that popularized this [VHS collecting] craze.”
13. On information and belief, sales of Defendant’s HorrorHound magazine
increased substantially in part due to the inclusion of the successful VIDEO INVASIONTM
series
in the magazine.
14. Despite the increased success of Defendant, Plaintiff received only sporadic and
unpredictable payments for his articles. These sporadic payments were generally in amounts
between fifty to one-hundred dollars ($50.00 to $100.00) per article. Plaintiff often had to
demand these paltry payments before Defendant would forward a check or transfer the funds via
the online service PayPal.
15. In addition, Plaintiff often purchased goods and services on behalf of Defendant,
with the promise that Plaintiff would be reimbursed. Defendant, however, never paid Plaintiff for
these expenditures.
16. On information and belief, Defendant sells its magazines for $6.99 (six dollars
and ninety-nine cents) each and produces six (6) issues per year. On information and belief,
Defendant produces no fewer than thirty thousand (30,000) copies of each issue, and has
produced up to seventy-five thousand (75,000) copies of some issues. Thus, on information and
belief, Defendant’s sales per year range between $1,260,000 and $3,150,000.
17. HorrorHound magazine’s popularity is evidenced by the more than thirteen
thousand (13,000) likes the magazine’s Facebook page has received and the more than twenty
thousand (20,000) individuals that follow HorrorHound on Twitter. On information and belief,
Defendant sells its magazine internationally through its website and retail outlets, including big-
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 4 of 24 PageID# 324
5
box chains such as Barnes & Noble, Hastings and Books A Million as well as local comic book
stores.
18. In early 2013, Plaintiff and Defendant ended their working relationship. Plaintiff
and Defendant agreed at that time that the VIDEO INVASIONTM
series would no longer be
published in Defendant’s magazine. In addition, Plaintiff’s termination of his relationship with
Defendant constituted a termination of Plaintiff’s consent for Defendant to publish Plaintiff’s
name in the HorrorHound magazine and to use Plaintiff’s VIDEO INVASIONTM
trademark.
19. Despite Plaintiff’s decision to discontinue writing for Defendant, Defendant
continued to list Plaintiff as a writer in Issues 40, 41, 42, 43, 44 and 45 (an entire year’s worth of
issues) of Defendant’s magazine. On information and belief, Defendant included Plaintiff as a
contributing writer in Defendant’s magazine in an effort to appeal to Plaintiff’s fan base and
drive sales of Defendant’s magazine.
20. In Issue 41, Defendant announced the return of the VIDEO INVASIONTM
series,
to be included in the next issue, although Plaintiff was no longer affiliated with the magazine.
Defendant never approached Plaintiff requesting permission to use Plaintiff’s VIDEO
INVASIONTM
Mark or to create a derivative of his copyrighted work.
21. In Issue 46, published in March, 2014, Defendant printed an article entitled “VHS
Invasion.” This article focused on the same subject matter as Plaintiff’s VIDEO INVASIONTM
series and constituted a derivative work of each of the articles in the VIDEO INVASIONTM
series.
22. Furthermore, the “VHS Invasion” article’s “look and feel” was almost identical to
the “look and feel” of Plaintiff’s VIDEO INVASIONTM
series.
23. Defendant published another VHS Invasion article in Issue 49.
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6
24. In Issue 50, Defendant published a “HorrorHound Magazine Index.” This index
listed all of Plaintiff’s previously published VIDEO INVASIONTM
articles as “VHS Invasion”
articles, assuming credit for all of the VIDEO INVASIONTM
articles and attempting to re-write
history by removing references to the VIDEO INVASIONTM
series. Despite this attempt to re-
write history, Defendant foiled part of the plan itself by including in the index the cover of Issue
22, where the VIDEO INVASIONTM
series is promoted prominently on the front and center
portion of the cover, a copy of which is attached hereto as Exhibit 1.
25. Defendant again published a VHS Invasion article in Issue 50.
26. Each of the VHS Invasion articles constituted derivative works of Plaintiff’s
copyright in the VIDEO INVASIONTM
articles.
27. Throughout 2013 and 2014, on information and belief, Defendant continued to
inform advertisers that upcoming issues would contain the VIDEO INVASIONTM
series. Due to
Defendant’s actions, these advertisers promoted HorrorHound magazine by, in part, advertising
the inclusion of the VIDEO INVASIONTM
series.
28. Furthermore, as of April 20, 2015, Defendant continued to advertise and sell
issues of the HorrorHound magazine that included infringing content, including Issue 50 and
others, on Defendant’s website, well after Defendant was formally notified of Plaintiff’s
complaint.1
29. The VIDEO INVASIONTM
articles required a significant amount of Plaintiff’s
time, which included writing the text of the articles, finding, selecting, and arranging pictures of
VHS covers to correspond to the VHS tapes Plaintiff discussed in his articles, and otherwise
creating a distinctive layout for the series.
1 See www.horrorhound.com/store/index, last visited on April 20, 2015.
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30. Prior to the first VIDEO INVASIONTM
article, Plaintiff conceptualized the layout
and design of the series. Plaintiff believed the series should be reminiscent of a movie store with
a museum-like quality. Plaintiff provided Defendant with a hand-drawn depiction of the layout
of the article and otherwise instructed Defendant in detail on Plaintiff’s vision for the design of
the article.
31. Similarly, with subsequent VIDEO INVASIONTM
articles, Plaintiff instructed
Defendant as to specific details pertaining to every aspect of the articles. Plaintiff spent a
significant amount of time discussing these VIDEO INVASIONTM
articles with Defendant,
wherein he detailed with specificity the layout and design of the VIDEO INVASIONTM
articles,
including, but not limited to, the selection and arrangement of the VHS cover art and the
selection and arrangement of any movie posters and promotions. In addition, Plaintiff spent a
significant amount of time answering Defendant’s questions regarding aspects of the layout and
design. On information and belief, Defendant inputted Plaintiff’s layout and design into a
computer software program.
32. In addition to authoring the layout and design of the VIDEO INVASIONTM
articles, Plaintiff twice updated the header for the VIDEO INVASIONTM
articles, with the
second iteration of the header appearing first in Issue 20, and the third iteration appearing first in
Issue 34. With each header, Plaintiff communicated to Defendant the exact changes
necessary to realize his vision, and those changes were implemented under Plaintiff’s authority.
Moreover, in addition to Plaintiff’s extensive communication, Plaintiff provided a drawing of the
main component of the second iteration of the header to Defendant.
33. Plaintiff created the layout and design of the VIDEO INVASIONTM
series by
dictating with specificity the design elements to Defendant, including, but not limited to: (i) a
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band of black roughly one inch wide, running horizontally from left to right across the top of the
left page and continuing slightly across the fold onto the opposite page where the black band is
composed of images of reels of VHS tapes laid end to end. The band features three additional
text and/or design elements: first, the text “THE VIDEO INVASION REMEMBERING THE
VHS BOOM!”, second, a colorful central featuring text consisting of the stylized Volume Title
and design, and third, text comprised of the Volume Number, Volume Title, and Plaintiff Matt
Moore’s name; (ii) two columns of text on both pages bifurcated by a central colorful video
cover; (iii) a band of colorful VHS covers creating a band approximately two inches wide across
all or substantially all of the bottom of both pages of the articles, and across the top of the second
page of the article; and (iv) the use of consistent font in white on black for the Series and
Volume names displayed in the black band.
34. Plaintiff thus authored the layout and design of each of the VIDEO INVASIONTM
articles, as Plaintiff communicated the exact design to Defendant and the work was fixed under
the authority of Plaintiff.
35. Defendant’s involvement with the VIDEO INVASIONTM
series amounted to
editing of Plaintiff’s text in the articles and transcribing Plaintiff’s exact instructions regarding
the layout and design of the series into a computer software program.
36. In each VIDEO INVASIONTM
article that Plaintiff penned, Plaintiff authored the
text, layout, and design of each VIDEO INVASIONTM
article, Plaintiff is the sole owner of all
intellectual property rights in the same.
37. As the sole owner, Plaintiff retains all rights to create works that derive from the
VIDEO INVASIONTM
articles.
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9
38. Plaintiff never signed a work for hire agreement, was never Defendant’s
employee, nor did he assign his intellectual property rights in the articles, the VIDEO
INVASIONTM
Mark, or his name to Defendant at any time. In addition, any implied license that
Defendant had to publish Plaintiff’s copyrighted work was terminated when Plaintiff ended his
relationship with Defendant.
39. Plaintiff currently has a federal copyright application pending for the VIDEO
INVASIONTM
series of articles covering Issues 34 through 39. Per the United States Copyright
Office’s rules, Plaintiff properly filed a paper application with the Copyright Office and paid the
required fees. See Exhibit 2. Plaintiff notes that “a complaint alleging that the copyright holder
properly applied for registration with the Copyright Office is sufficient to satisfy the
precondition to an infringement action.” Phoenix Renovation Corp. v. Rodriguez, 403 F. Supp.
2d 510, 515 (E.D. Va. 2005).
40. Defendant violated Plaintiff’s copyright when it created the infringing “VHS
Invasion” series. Defendant’s VHS Invasion articles utilized the same look and feel as Plaintiff’s
VIDEO INVASIONTM
series and were derived from Plaintiff’s VIDEO INVASIONTM
series.
41. In the alternative, even if Defendant’s contributions to each VIDEO
INVASIONTM
article go beyond editing and transcribing, Plaintiff is, at the very least, a joint
author in each VIDEO INVASIONTM
article that he penned.
42. For each of the VIDEO INVASIONTM
articles that Plaintiff penned, Plaintiff
authored the independently-copyrightable text. Plaintiff also provided independently-
copyrightable and/or substantial contributions to the layout and design of each VIDEO
INVASIONTM
article, including, but not limited to, contributions to the article headers, the
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selection and arrangement of VHS cover art, the selection and arrangement of poster art, movie
stills and other aspects of the design.
43. Furthermore, Plaintiff was responsible for giving final approval of the VIDEO
INVASIONTM
articles.
44. With each published VIDEO INVASIONTM
article, Plaintiff and Defendant
intended to create a unitary whole work comprising all of the components put forth by the
parties.
45. As a joint author, Plaintiff is entitled to his pro rata share of the profits in both the
VIDEO INVASIONTM
series and the derivative VHS Invasion articles, a right that Defendant
has thus far denied Plaintiff.
46. Additionally, Plaintiff is the owner of the mark VIDEO INVASIONTM
, which
Plaintiff uses to identify his series of articles. As a result of Plaintiff’s continuous use of the
VIDEO INVASIONTM
Mark to identify Plaintiff’s series, Plaintiff owns common law rights to
the VIDEO INVASIONTM
Mark.
47. Defendant infringed Plaintiff’s trademark rights in the VIDEO INVASIONTM
mark when it continued to use Plaintiff’s trademark and then began using the confusingly similar
VHS INVASION trademark.
48. Defendant’s use of the mark VHS INVASION to identify its new articles was
intended to cause and has caused actual confusion in the marketplace. For example, on March
13, 2014, a fan of Plaintiff’s VIDEO INVASIONTM
series posted in a forum: “Video Invasion is
back in HorrorHound this month? Nice.” This statement confused Defendant’s VHS Invasion
article, published in the March, 2014 issue of Defendant’s magazine, with Plaintiff’s VIDEO
INVASIONTM
series.
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11
49. In addition, Defendant’s listing of the VIDEO INVASIONTM
articles as “VHS
Invasion” articles in the “HorrorHound Magazine Index” published in Issue 50 significantly
enhances the likelihood of confusion between Plaintiff’s VIDEO INVASIONTM
series and “VHS
Invasion,” as Defendant has willfully led consumers to believe that all of Plaintiff’s VIDEO
INVASIONTM
articles are actually “VHS Invasion” articles.
50. Defendant’s use of the mark VHS Invasion infringes Plaintiff’s rights in the
VIDEO INVASIONTM
mark as it causes, and was intended to cause, confusion in the
marketplace as to the source of the articles.
51. Plaintiff filed an application to federally register the VIDEO INVASIONTM
mark
on December 12, 2014 (U.S. Serial Number 86480154), a copy of the United States Patent and
Trademark Office filing receipt for this mark is shown as Exhibit 3.
52. Plaintiff has also registered the mark VIDEO INVASIONTM
with the
Commonwealth of Virginia, Virginia Trademark Registration Number 11110. See Exhibit 4.
COUNT I
UNFAIR COMPETITION UNDER THE LANHAM ACT
(As to VIDEO INVASIONTM
Mark)
53. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
54. Defendant’s unauthorized use of Plaintiff’s VIDEO INVASIONTM
is likely to and
has caused actual confusion among the consuming public as to the origin, sponsorship, or
approval of Defendant’s goods.
55. As a result of Defendant’s unauthorized use of Plaintiff’s VIDEO INVASIONTM
Mark in connection with articles in the field of collecting horror movies, the consuming public
has believed, and is likely to continue to believe, that Defendant’s articles have been created or
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12
approved by Plaintiff. Such use falsely represents Defendant as being legitimately affiliated,
connected, or associated with or authorized by Plaintiff. Defendant’s use further places
Plaintiff’s valuable and hard-earned reputation and goodwill in the hands of Defendant in
violation of 15 U.S.C. § 1125(a).
56. Furthermore, Defendant’s unauthorized use of the VHS Invasion mark, a
confusingly similar imitation of Plaintiff’s VIDEO INVASIONTM
Mark, is likely to cause
confusion, to cause mistake, or to deceive the consuming public as to the origin, sponsorship, or
approval of Defendant’s goods, and in fact has caused confusion, mistake, and has deceived the
consuming public as to the origin, sponsorship, or approval of Defendant’s goods.
57. As a result of Defendant’s unauthorized use of a confusingly similar imitation of
Plaintiff’s Mark in connection with articles in the field of collecting horror movies, the
consuming public has believed, and is likely to continue to believe, that Defendant’s articles
have been created or approved by Plaintiff. Such use falsely represents Defendant as being
legitimately affiliated, connected, or associated with or authorized by Plaintiff. Defendant’s use
further places Plaintiff’s valuable and hard-earned reputation and goodwill in the hands of
Defendant in violation of 15 U.S.C. § 1125(a).
58. On information and belief, in using Plaintiff’s VIDEO INVASIONTM
Mark,
Defendant knowingly and intentionally caused actual confusion among the relevant consuming
public as to the source of Defendant’s VHS Invasion articles.
59. Defendant’s conduct is causing immediate and irreparable injury to Plaintiff, his
goodwill and reputation, and will continue to damage Plaintiff and deceive the public unless
enjoined by this Court pursuant to 15 U.S.C. § 1116.
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60. In addition to injunctive relief, Plaintiff is entitled to recover his actual damages,
costs, reasonable attorneys’ fees, and Defendant’s profits under 15 U.S.C. § 1117 in an amount
to be determined.
COUNT II
STATE TRADEMARK INFRINGEMENT
(As to VIDEO INVASIONTM
Mark)
61. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
62. Defendant’s unauthorized use of Plaintiff’s VIDEO INVASIONTM
Mark is likely
to cause, and in fact has caused, consumer confusion, mistake, or deception as to the source or
origin of Defendant’s goods in violation of Virginia Code Ann. § 59.1-92.12.
63. Furthermore, Defendant’s unauthorized use of the VHS INVASION Mark, a
confusingly similar imitation of Plaintiff’s VIDEO INVASIONTM
Mark, is likely to cause, and in
fact has caused, consumer confusion, mistake, or deception as to the source or origin of
Defendant’s goods in violation of Virginia Code Ann. § 59.1-92.12.
64. In using Plaintiff’s Mark, Defendant knowingly and intentionally caused actual
confusion among the relevant consuming public as to the source of Defendant’s VHS Invasion
articles.
65. As a result of Defendant’s intentional actions, Plaintiff is entitled to recover his
actual damages, costs, reasonable attorneys’ fees, and Defendant’s profits under Virginia Code
Ann. § 59.1-92.12 in an amount to be determined.
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COUNT III
COMMON LAW UNFAIR COMPETITION/MISAPPROPRIATION
(As to the VIDEO INVASIONTM
Mark)
66. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
67. Defendant’s acts constitute common law unfair competition and have created and
will continue to create a likelihood of confusion by using a confusingly similar imitation of
Plaintiff’s VIDEO INVASIONTM
Mark.
68. On information and belief, Defendant acted with full knowledge of Plaintiff’s use
of, and common law rights to, the VIDEO INVASIONTM
Mark and acted without regard to the
likelihood of confusion of the public created by Defendant’s activities.
69. Such confusion has actually occurred, and is likely to continue to occur, due to
Defendant’s actions.
70. On information and belief, Defendant’s actions demonstrate an intentional and
willful intent to trade on the goodwill and reputation associated with Plaintiff’s Mark to the great
and irreparable injury of Plaintiff.
71. As a result of Defendant’s acts, Plaintiff has been damaged in an amount not as
yet determined or ascertainable. At a minimum, however, Plaintiff is entitled to injunctive relief,
to an accounting of Defendant’s profits, to damages, and to costs.
COUNT IV
FEDERAL COPYRIGHT INFRINGEMENT
72. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
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15
73. Plaintiff is, and all relevant times has been, the copyright owner of exclusive
rights with respect to every VIDEO INVASIONTM
article that Plaintiff penned and all artistic
elements incorporated by Plaintiff into each article.
74. As copyright owner of exclusive rights, Plaintiff is solely entitled to reproduce,
distribute, prepare derivative works, and/or display Plaintiff’s copyrighted work.
75. Defendant’s publication of each article entitled “VHS Invasion” infringed
Plaintiff’s exclusive rights by preparing a derivative work without Plaintiff’s consent or
agreement.
76. Although Defendant could have adopted any one of thousands of article layouts
and elements, Defendant’s VHS Invasion series copied a substantial part of Plaintiff’s work by
including, but not limited to, the following elements employed by Plaintiff: (i) a band of black
roughly one inch wide and a light gray horizontal line near the bottom of such band, in each case,
running horizontally from left to right across the top of the left page; (ii) layout of text on either
side of the series name; (iii) a band of colorful VHS covers creating a band approximately two
inches wide across all or substantially all of the bottom of both pages of the articles, and across
the top of the second page of the article; and (iv) the use of consistent font in white on black for
the Series and Volume names displayed in the black band.
77. On information and belief, Defendant’s acts were willful and intentional and with
disregard of and indifference to the rights of Plaintiff.
78. Defendant’s conduct is causing immediate and irreparable injury to Plaintiff, his
goodwill and reputation, and will continue to damage Plaintiff and deceive the public unless
enjoined by this Court pursuant 17 U.S.C. § 502.
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16
79. As a result of Defendant’s acts, Plaintiff has been damaged in an amount not as
yet determined or ascertainable. At a minimum, however, Plaintiff is entitled to injunctive relief,
to an accounting of Defendant’s profits, to damages, and to costs, including reasonable attorneys’
fees.
COUNT V
DECLARATORY JUDGMENT
(In the Alternative)
80. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
81. Each of the facts set forth in Counts V, VI, and VII are pled in the alternative.
82. If Plaintiff is not the sole owner of each VIDEO INVASIONTM
article that he
penned, then, in the alternative, Plaintiff is, at the very least, a joint author in the same.
83. Plaintiff owns the independently-copyrightable text for each VIDEO
INVASIONTM
article that he penned.
84. Plaintiff made independently-copyrightable and/or substantial contributions to the
layout and design of each VIDEO INVASIONTM
article and to other components of the unitary
work.
85. Plaintiff was responsible for approving the final version of each VIDEO
INVASIONTM
article.
86. Defendant also contributed to each VIDEO INVASIONTM
article, through, on
information and belief, the use of a computer software program.
87. With each VIDEO INVASIONTM
article, Plaintiff and Defendant fully expected
and intended for their contributions to be merged into inseparable or interdependent parts of a
single unitary whole comprising the finalized version of each VIDEO INVASIONTM
article.
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17
88. Defendant, however, now claims that its contributions rise to the level of entitling
it to sole ownership in the copyright in each VIDEO INVASIONTM
article that Plaintiff penned.
89. Therefore, an actual case or controversy exists sufficient for this Court to declare
the rights and remedies of the parties in that there is a dispute between the parties concerning the
extent of rights each party enjoys in each of the VIDEO INVASIONTM
articles.
90. Pursuant to 28 U.S.C. § 2201 Plaintiff seeks a judgment declaring that Plaintiff is
an author and owner of the copyright in each VIDEO INVASIONTM
article that he penned.
COUNT VI
ACCOUNTING
91. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
92. Plaintiff, as a joint owner in the copyright, is entitled to his pro rata share of the
profits that Defendant enjoyed from each VIDEO INVASIONTM
article that he penned and/or
the VIDEO INVASION TM
series as a whole.
93. Plaintiff is further entitled to his pro rata share of the profits that Defendant
enjoyed from the “VHS Invasion” articles, which were derived from the VIDEO INVASIONTM
series.
94. By commercially exploiting both the VIDEO INVASIONTM
series and the VHS
Invasion articles without accounting to Plaintiff for profits, Defendant wrongfully deprived
Plaintiff of his rightful share of income therefrom.
95. Defendant’s actions have damaged Plaintiff in an amount not as yet determined or
ascertainable.
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96. Plaintiff is therefore entitled to an accounting of Defendant’s profits with respect
to each VIDEO INVASIONTM
article that Plaintiff penned and/or the VIDEO INVASIONTM
series as a whole, as well as to the VHS Invasion articles.
COUNT VII
CONSTRUCTIVE TRUST
97. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
98. By virtue of the foregoing, in equity any interest in each VIDEO INVASIONTM
article that Plaintiff penned and/or the VIDEO INVASIONTM
series, as well as the VHS Invasion
articles, and profits received by Defendant from their commercial exploitation are the property of
Plaintiff and Defendant in equal shares.
99. Defendant has wrongfully deprived Plaintiff of his share of the profits that
Defendant enjoyed from the commercial exploitation of each VIDEO INVASION TM
article that
he penned and/or the VIDEO INVASIONTM
series as a whole, as well as the VHS Invasion
articles.
100. By virtue of Defendant’s acts, Defendant holds the profits derived from the
exploitation of both the VIDEO INVASIONTM
series and the VHS Invasion articles as
constructive trustee for the benefit of Plaintiff and Defendant.
101. Plaintiff is entitled to immediate possession of his pro rata share of the profits
held by Defendant as constructive trustee.
COUNT VIII
STATUTORY RIGHT OF PUBLICITY
102. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
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19
103. Plaintiff has the sole and exclusive right of publicity with regard to the use of his
name in Defendant’s magazine.
104. After Plaintiff decided to and did discontinue his working relationship with
Defendant, Defendant published Plaintiff’s name in Defendant’s magazine for the purposes of
trade on at least six different occasions.
105. On information and belief, Defendant’s unauthorized and unlawful use of
Plaintiff’s name was willful, intentional, and knowing.
106. Defendant’s conduct has caused and is causing immediate and irreparable injury
to Plaintiff, his goodwill and reputation, and will continue to damage Plaintiff and deceive the
public unless enjoined by this Court pursuant to Virginia Code Ann. § 8.01-40.
107. Furthermore, as a result of Defendant’s knowing use of Plaintiff’s name, Plaintiff
is entitled to recover actual and exemplary damages pursuant to Virginia Code § 8.01-40.
COUNT IX
COMMON LAW QUANTUM MERUIT
108. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
herein.
109. From July, 2008 through January, 2013, Plaintiff authored dozens of in-depth
articles that were published in Defendant’s magazine, including, but not limited to, twenty-six
(26) articles for the VIDEO INVASIONTM
series.
110. On information and belief, Defendant sought out a wide variety of authors,
including Plaintiff, to expand the magazine’s appeal by including a variety of content in each
issue of the HorrorHound magazine. Plaintiff’s VIDEO INVASIONTM
series fulfilled this goal
by appealing to both VHS fans and horror fans.
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 19 of 24 PageID# 339
20
111. Defendant repeatedly failed to fairly compensate Plaintiff for his work. Although
Plaintiff was spending several hours creating, writing, designing, and organizing each article,
Defendant in exchange paid Plaintiff small and irregular sums. Plaintiff often had to demand and
then repeatedly follow up with Defendant before receiving these payments.
112. On several occasions, Plaintiff requested additional information regarding how
Defendant calculated Plaintiff’s compensation. In response to one such inquiry, Defendant
informed Plaintiff that he was paid on a “per page” basis. The payment history belies this
purported structure, however, as Plaintiff was at one time paid $40.00 for a six page article and at
another time paid $100.00 for a two page article.
113. When Plaintiff again requested more detailed information regarding payment, he
was assured by Defendant that Plaintiff’s compensation was the “same as the others.” Additional
requests for information by Plaintiff were met by Defendant repeatedly dodging the question and
refusing to provide any substantive information regarding compensation.
114. On information and belief, Defendant’s actions demonstrate an intentional and
willful intent to benefit from Plaintiff’s labor without appropriately compensating Plaintiff
therefor.
115. In addition, Plaintiff purchased various items, including VHS tapes, on behalf of
Defendant. Plaintiff fronted the costs for these items on behalf of Defendant after Defendant
promised to reimburse Plaintiff for such costs.
116. Defendant failed to recompense Plaintiff the significant costs Plaintiff incurred on
behalf of Defendant. Defendant was thus unjustly enriched as a result of Defendant’s actions.
117. As a result of Defendant’s acts, Plaintiff is entitled to recover his actual damages,
costs and reasonable attorneys’ fees in an amount to be determined.
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 20 of 24 PageID# 340
21
PRAYER FOR RELIEF
1. WHEREFORE, Plaintiff prays that: Defendant and all of its agents, officers, employees,
representatives, successors, assigns, attorneys, and all other persons acting for, with, by,
through, or under authority from Defendant, or in concert or participation with
Defendant, and each of them, be enjoined permanently, from:
a. Using the VHS INVASION and the VIDEO INVASIONTM
trademarks, or any
other colorable imitation or confusingly similar mark on or in connection with
Defendant’s goods and services ;
b. Using any trademark, service mark, name, logo, design or source designation of
any kind on or in connection with Defendant’s goods or services that is a copy,
reproduction, colorable imitation, or simulation of, or confusingly similar to the
VIDEO INVASIONTM
trademark;
c. Using any trademark, service mark, name, logo, design or source designation of
any kind on or in connection with Defendant’s goods or services that is likely to
cause confusion, mistake, deception, or public misunderstanding that such goods
or services are produced or provided by Plaintiff, is sponsored or authorized by
Plaintiff, or is in any way connected or related to Plaintiffs;
2. Defendant be ordered to recall all products that infringe Plaintiff’s VIDEO INVASIONTM
trademark which have been shipped by Defendant or under its authority, to any customer
including, but not limited to, any wholesaler, distributor, retailer, or marketer;
3. Defendant be ordered to deliver up for impoundment and destruction all magazines and
merchandise, including but not limited to shirts, hats, sweaters, ball caps, etc., in the
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 21 of 24 PageID# 341
22
possession, custody, or under the control of Defendant that is found to adopt, to infringe,
or to dilute Plaintiff’s VIDEO INVASIONTM
trademark or his copyright;
4. Defendant be compelled to account to Plaintiff for any and all profits derived from
Defendant from the sale or distribution of infringing goods as described in this
Complaint, including prejudgment interest thereon;
5. Plaintiff be awarded all damages, expressly including unreimbursed expenses paid by
Plaintiff and unpaid wages, caused by the acts forming the basis of this Complaint,
together with prejudgment interest thereon;
6. Based on Defendant’s knowing and intentional use of Plaintiff’s Mark and a colorable
imitation of Plaintiff’s Mark, the damages award be trebled and the award of Defendant’s
profits be enhanced as provided for by 15 U.S.C. § 1117 and Virginia Code Ann. § 59.1-
92.12;
7. Defendant be required to pay to Plaintiff the cost of this action and Plaintiff’s reasonable
attorneys’ fees pursuant to 15 U.S.C. § 1117 and Virginia Code Ann. § 59.1-92.12;
8. Plaintiff be awarded Plaintiff’s actual damages and Defendant’s profits with respect to
the VHS Invasion articles pursuant to 17 U.S.C. § 504 and Plaintiff’s reasonable
attorneys’ fees and costs pursuant to 17 U.S.C. § 505;
9. If the Court finds that each VIDEO INVASIONTM
article is a joint work, that the Court
declare that each VIDEO INVASIONTM
series comprises joint works of authorship for
which Plaintiff is an author;
10. In the event of a declaratory judgment, that Plaintiff be granted an accounting of profits
from Defendant with respect to each VIDEO INVASIONTM
article that he penned and
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 22 of 24 PageID# 342
23
the VIDEO INVASIONTM
series as a whole, as well as the VHS Invasion articles and an
award of attorneys’ fees;
11. In the event of a declaratory judgment, that the Court impress upon Defendant a
constructive trust for all profits and other benefits received by Defendant in the
exploitation of each VIDEO INVASIONTM
article that he penned and the VIDEO
INVASIONTM
series as a whole, as well as the VHS Invasion articles and order
Defendant to pay in damages the amount due to Plaintiff under that constructive trust;
and
12. Such other and further relief as the Court may deem just.
JURY TRIAL DEMAND
Plaintiff respectfully demands a trial by jury on all claims and issues so triable.
DATED: July 31, 2015
_______/s/___________
Pamela C. Gavin, Esq.
VSB No. 37328
Gavin Law Offices, PLC
2229 Pump Road
Richmond, Virginia 23233
Telephone: 804-784-4427
Facsimile: 804-482-2964
pgavin@gavinlawoffices.com
Attorney for Ian Mattlock Moore
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 23 of 24 PageID# 343
24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 31st day of July, 2015, I electronically filed the
foregoing Plaintiff’s First Amended Original Complaint using CM/ECF. I further certify that the
foregoing document is being served this day on the following through the CM/ECF system:
Jon A. Shiffrin, Esq., VSB No. 67542
Trina A. Long, Esq., VSB. No. 45586
8201 Greensboro Drive, Suite 300
McLean, Virginia 22102
Telephone: (703) 288-5248
Facsimile: (703) 288-4003
jon@schiffrinlaw.com
trina@schiffrinlaw.com
_______/s/_________
Pamela C. Gavin
VSB No. 37328
Gavin Law Offices, PLC
2229 Pump Road
Richmond, Virginia 23233
Telephone: 804-784-4427
Facsimile: 804-482-2964
pgavin@gavinlawoffices.com
Attorney for Ian Mattlock Moore
Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 24 of 24 PageID# 344
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