Doc 36 Amended Complaint against Wine and Canvas Development LLC et al

THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION MEGAN AROON DUNCANSON and SHERI MARIE WISEMAN, Plaintiffs, v. WINE & CANVAS DEVELOPMENT, LLC; WINE AND CANVAS IP HOLDINGS LLC; ANTHONY SCOTT, individually; TAMARA SCOTT a/k/a TAMARA MCCRACKEN, individually; WNC OF JACKSONVILLE, LLC; SARAH MARIE WATHEN and JOSHUA MICHAEL WATHEN, jointly, D/B/A WINE AND CANVAS, and individually; SJ WATHEN BLOOMINGTON LLC F/K/A WINE AND CANVAS BLOOMINGTON LLC; YABOO LLC D/B/A WINE AND CANVAS; and WNC OF ORLANDO LLC, Defendants.

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Civil Action No. 6:14-cv-00704-PGB-KRS

AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

COME NOW Plaintiffs, MEGAN DUNCANSON and SHERI MARIE

WISEMAN, and hereby file this Complaint against Defendants,

WINE & CANVAS DEVELOPMENT, LLC; WINE AND CANVAS IP HOLDINGS

LLC; ANTHONY SCOTT, individually; TAMARA SCOTT a/k/a TAMARA

MCCRACKEN, individually; WNC OF JACKSONVILLE, LLC; SARAH MARIE

WATHEN and JOSHUA MICHAEL WATHEN, jointly, D/B/A WINE AND

Case 6:14-cv-00704-PGB-KRS Document 36 Filed 07/18/14 Page 1 of 35 PageID 212

Duncanson v Wine and Canvas Development, LLC Amended Complaint, Page 2 of 35

CANVAS, and individually; SJ WATHEN BLOOMINGTON LLC F/K/A WINE

AND CANVAS BLOOMINGTON LLC; YABOO LLC D/B/A WINE AND CANVAS;

and WNC OF ORLANDO LLC; for damages and injunctive relief,

and, in support hereof, states:

SUBJECT-MATTER JURISDICTION

1. This is an action for copyright infringement

pursuant to 17 U.S.C. §§ 101, et seq., in which Plaintiffs

seek recovery of costs, damages and injunctive relief for

Defendants’ copyright infringement.

2. Subject-matter jurisdiction herein is proper as this

matter arises under the United States Copyright Act, 17 U.S.C.

§§ 101 et seq.

PARTIES, PERSONAL JURISDICTION, AND VENUE

3. Plaintiff MEGAN DUNCANSON is an individual residing

within the Middle District of Florida.

4. Plaintiff SHERI MARIE WISEMAN is an individual

residing in Utah.

5. The “Wine and Canvas” business is a franchise

business, and Defendants are all related in some way in that

they all utilize the Wine and Canvas brand. However, some

confusion exists as to exactly who does what, which gives way

to a shell game of the involved individuals and entities.

6. Defendants WINE & CANVAS DEVELOPMENT, LLC and WINE



AND CANVAS IP HOLDINGS LLC are related entities. They are

both Indiana companies with their headquarters in Indiana.

Both these entities have made a claim to the “Wine and Canvas”

brand,1 and both appear to operate the business model known as

“Wine and Canvas” business.2 The Wine and Canvas business

extends throughout 41 or more geographical locations, as well

as mobile locations. At least five of these geographic

locations are within Florida, and four of those within the

Middle District of Florida, at (a) Fort Myers/Naples,

(b) Jacksonville, (c) Orlando, (d) Tampa / St. Pete /

Clearwater, and (e) Fort Lauderdale / Palm Beach.

7. Defendants ANTHONY SCOTT and TAMARA SCOTT a/k/a

TAMARA MCCRACKEN are a husband-and-wife-duo who, together,

founded the Wine and Canvas business model.3 Both individuals

1 A search under the United States Patent and Trademark Office reveals that the Word Mark “WINE AND CANVAS” (Reg. No. 4,398,849) is registered to Defendant WINE AND CANVAS DEVELOPMENT LLC [DBA WINE AND CANVAS LIMITED LIABILITY COMPANY]. However, in an Affidavit, Defendant ANTHONY SCOTT says it is registered to WINE AND CANVAS IP HOLDINGS LLC (Doc. 28-1 ¶ 1).

2 In a lawsuit filed in Indiana State Court by WINE & CANVAS DEVELOPMENT, LLC on or about February 21, 2013, that party alleged that it, WINE & CANVAS DEVELOPMENT, LLC, owned the brand and business model; however, in an Affidavit (Doc. 28-1), Defendant ANTHONY SCOTT states that WINE AND CANVAS IP HOLDINGS LLC owns the brand and business model.

3 E.g., Heidi Prescott, Market Basket: New Wine & Canvas business offers a creative night out SouthBendTribune (Aug. 9, 2012), http://articles.southbendtribune.com/2012-08-09/news/33123773_1_blank-canvas-market-basket-creative-night (“[Tamara] Scott and her husband, Tony, co-founded the Wine & Canvas business in 2010 in Indianapolis. The



reside in Indiana and both are owners of WINE & CANVAS

DEVELOPMENT, LLC and WINE AND CANVAS IP HOLDINGS LLC.

8. In addition to being an owner of both WINE & CANVAS

DEVELOPMENT, LLC and WINE AND CANVAS IP HOLDINGS LLC,

Defendant ANTHONY SCOTT is an LLC Manager of at least two (and

possibly more) Wine and Canvas franchisees located within the

state of Florida: WNC OF ORLANDO, LLC and WNC OF TAMPA LLC,

both of which conduct business within the Middle District of

Florida.

9. The Wine and Canvas brand is marketed through a

website, www.wineandcanvas.com, which is published nationwide,

including in Florida, for customers and potential customers of

all Wine and Canvas locations, including those in Florida and

the Middle District of Florida.

10. The exact entity that owns the www.wineandcanvas.com

website is somewhat confusing. A WHOIS search4 result reveals

the domain to be registered to “Tamara McCracken” (who appears

to be Defendant TAMARA SCOTT a/k/a TAMARA MCCRACKEN) of “Wine

and Canvas” (which could be either Defendant WINE & CANVAS

DEVELOPMENT, LLC; Defendant WINE AND CANVAS IP HOLDINGS LLC; couple currently offers locations in 14 cities from Los Angeles to Cleveland.)

4http://who.godaddy.com/whoisstd.aspx?domain=wineandcanvas.com&prog_id=GoDaddy&k=DgHTqCRTcP7BUwGPVjg7jPRAvIxuiBvmYx8OP%2f4+cE1Rl6Tzuors5GdJWqYZGPGA



or another entity) at address 220 Surrey Hill Ct Apt 5,

Carmel, Indiana 46032, but shows the Registrant Email to be

[email protected], which appears to be for Defendant ANTHONY

SCOTT. However, Defendant ANTHONY SCOTT stated in an

Affidavit that Defendant WINE AND CANVAS IP HOLDINGS LLC owns

the website (Doc. 28-1 at ¶ 5).

11. Defendants SARAH MARIE WATHEN and JOSHUA MICHAEL

WATHEN, jointly, D/B/A WINE AND CANVAS, are individuals

residing in Jacksonville, Florida, who own the Florida-

registered fictitious name “WINE AND CANVAS,” which has been a

registered fictitious name in Florida since October 24, 2012

(State of Florida Filing Registration No. G12000103611).

Defendants SARAH MARIE WATHEN and JOSHUA MICHAEL WATHEN are

also LLC Managers of Defendant WNC OF JACKSONVILLE, LLC.

12. Defendant WNC OF JACKSONVILLE, LLC is foreign

limited liability company that operates, conducts, engages in,

and carries on its business in the State of Florida;

furthermore, its LLC managers, Defendants SARAH MARIE WATHEN

and JOSHUA MICHAEL WATHEN, reside in Florida. The company has

been registered with the Florida Secretary of State since

April 4, 2014.

13. Defendant SJ WATHEN BLOOMINGTON LLC F/K/A WINE AND

CANVAS BLOOMINGTON LLC is a limited liability company located



in Indiana; it has availed itself to the personal jurisdiction

of the state of Florida by (a) operating, conducting, or

engaging in, or carrying on business within this state or

having an office or agency in this state, in that its

owner(s)/officer(s), including Defendant SARAH MARIE WATHEN,

reside in this state and engage in company operations herein;

(b) using the World Wide Web to post images onto Internet

websites which infringe Plaintiffs’ copyrights, which

infringing images are accessible in Florida and accessed in

Florida; and/or (c) engaging in substantial and not isolated

activity within Florida.

14. Defendant YABOO LLC D/B/A WINE AND CANVAS is a

Florida Limited Liability company with its principal place of

business in Fort Myers, Florida, which is within the Middle

District of Florida. YABOO LLC operates Wine and Canvas

events in the Fort Myers area (and potentially in other

areas).

15. Defendant WNC OF ORLANDO LLC is a foreign

corporation whose principal place of business is located in

Orlando, Orange County, within the Middle District of Florida.



FACTUAL ALLEGATIONS

Plaintiff Artists & the Subject Works

16. Plaintiffs both are visual artists.

17. Ms. Duncanson is the owner of multiple original

visual works. A prolific artist who makes a living off her

artwork, she sells quality prints of her works via art.com and

artistrising.com, which displays authorized images of her work

so customers can purchase the prints. She has also sold

prints through the website Etsy.

18. Ms. Duncan has registered her ownership of each of

the following works with the United States Copyright Office:

Title of Work Registration No. Effective Date of Regist.

Bubbling Joy Collection VA 1-860-451 March 2, 2013

Fine Wine VA 1-872-069 August 13, 2013

Spring Shine VA 1-872-068 August 9, 2013

Twisting Love 2007 VA 1-872-086 August 13, 2013

Twisting Love 2011 VA 1-872-071 August 9, 2013

Birds of a Feather VA 1-872-072 August 14, 2013

Ms. Duncan registered the following two other works as part of

a collection titled “Published Paintings 2006”:




Tropical Energy VA0001860474 January 1, 2006

Blue Depth VA0001860474 January 1, 2006

19. Ms. Wiseman is the owner of various visual works,

including the painting Red Bonsai Rain, which she has sold

through the website Etsy. Ms. Wiseman has registered said

ownership with the United States Copyright Office:


Red Bonsai Rain VAu 1-141-493 August 13, 2013

20. Pursuant to the United States copyright laws, Ms.

Duncanson and Ms. Wiseman obtained copyright registrations for

all of the above-mentioned works, which, shall be referred to

herein collectively as the “Subject Works.”

21. True and correct copies of the certificates of

registration or registration information for the Subject Works

are attached hereto as Exhibits.

The Wine and Canvas Franchise

22. Defendants ANTHONY SCOTT and TAMARA SCOTT a/k/a

TAMARA MCCRACKEN created the “Wine and Canvas” brand, and they

created companies WINE & CANVAS DEVELOPMENT, LLC and WINE AND

CANVAS IP HOLDINGS LLC for the purpose of growing and



expanding this business.

23. Essentially, WINE & CANVAS DEVELOPMENT, LLC or WINE

AND CANVAS IP HOLDINGS LLC, or, in any event, the “Wine and

Canvas” business model created by ANTHONY SCOTT and TAMARA

SCOTT a/k/a TAMARA MCCRACKEN, is a franchisor (collectively,

all these Defendants are referred to hereinafter as the “Wine

and Canvas Franchisors”), and the other Defendants are their

Franchisees.

24. The Wine and Canvas Franchisors license their brand

name and business concept to third parties, including other

Defendants, who also operate businesses under the “Wine and

Canvas” brand name.

25. The Wine and Canvas Franchisors provide the other

Defendants (“Franchisees”) with advertising, know-how,

services, and other benefits for the purpose of running the

businesses.

The Wine & Canvas Paint Parties

26. All Defendants are engaged in a business of

operating “paint parties.”

27. For each paint party, Defendants invite guests to

take a painting class while enjoying cocktails.



28. A class can have as many as 100 students.5

29. To sign up for a paint party at any Wine and Canvas

location or for any Defendant, customers (“students”) visit

www.wineandcanvas.com.

30. As the website explains, students choose their city

and select a painting from the online calendar. Then, through

the website, they each pay a fee, usually about $35, and they

are supplied a blank canvas and paints, plus the use of

brushes, easel, and an apron.

31. Each paint party is a new class where an “artist”

instructs Defendants’ “students” step-by-step, through re-

creating a visual paint-on-canvas work of art so each student

can take home his or her own self-painted work of art, which

is a reproduction of an original work of art (or of a

derivative work of an original work).

32. During each painting class, students receive

detailed instruction, guidance, coaching, and encouragement by

Defendant(s). 5 A Toast for the Arts, BALLBEARINGS (Sept. 24, 2012) (Video) http://ballbearingsmag.com/2012/09/a-toast-for-the-arts/#.Uzh3Dq1dWTI (Showing Wine and Canvas Development LLC founder Tamra Scott saying, “One of the best things of being an instructor here is at the end of the night when you have 70 people in this room and we do a big group photo and they all hold their pictures up at the end with their masterpieces that they created . . . that is the coolest.”)



Acts of Infringement (Prior to Lawsuit)

33. Defendants’ acts of infringement are on such a

massive, widespread scale that the actual number of

infringements is unknown, and it is impracticable or

impossible to detail all such acts in one complaint.

34. In fact, as a result of the fact that Defendants

cause the making of reproductions of reproductions of

reproductions of reproductions, the sheer number of

infringements, which are estimated to be in the thousands,

occur in an almost Droste-effect, recursive manner.

35. The copies are not exact duplications. Rather,

because they are all repainted, most have with slight

alterations of the original. However, all reproductions are

substantially similar enough to be recognizable.

36. By way of an example, images of a few of the

multiple acts of infringement that have occurred for each of

the above-listed Subject Works have been attached hereto as

Exhibits.

37. Prior to each class that involves infringements of

Plaintiffs’ work, Defendant(s) place an unauthorized

reproduction of one the Subject Works on its/their website

calendar — located at www.wineandcanvas.com — in an effort to

advertise the upcoming class.



38. When they publish a copy (or a derivative copy) of a

Subject Work, Defendants represent to the public that it is an

authorized copy created by an artist hired by Wine and Canvas

Development LLC or other Defendant.

39. In some cases, the Wine and Canvas Franchisors’

“Wine and Canvas” branding is so strong and controlling that

Defendants or the Franchisees credit the author of the

painting as the “Wine and Canvas” brand itself.

40. As also explained above, when a Wine and Canvas

painting class event takes place, students, who pay a fee to

Defendant(s)6 join in the class, are encouraged by Defendants

to make an unauthorized reproduction of Defendants’

unauthorized reproduction. Each individual event results in

30-100 unauthorized painted reproductions or derivative works,

with each such reproduction being an individual act of

infringement by a different individual.

41. After some but not all classes, the Defendant who

hosted the class takes photographs (thereby making even more

unauthorized reproductions) of these students’ paintings,

which that Defendant posts to its Facebook pages. These

6 It is uncertain at the time of filing exactly how the fee is split among the Defendants, or if it is split at all. However, generally the Defendant that is hosting the class will receive the fee. That defendant may provide a percentage or portion to the Wine and Canvas Franchisors, or they benefits in another, indirect way.



copies, upon information and belief, are copied or shared

again by Facebook “fans” or “friends.”

42. After the making the newly unauthorized

reproduction, each student takes home his or her unauthorized

reproduction or derivative work. Many such students make

further and new infringements by taking photographs (i.e. new

unauthorized derivative works) of the paintings and sharing

the photos via social media, such as Instagram, or blogs.7

43. During at least some of the classes, the Wine and

Canvas Franchisees and other of the Wine and Canvas

Franchisors’ licensees, for the purposes of promoting their

own businesses and the Wine and Canvas brand, take photographs

of the students while the students are painting the

unauthorized reproductions and derivative works, thereby

creating additional unauthorized reproductions of the

unauthorized reproductions and/or derivative works. These

photographs are then copied (again without Plaintiffs’

authorization) when they are posted to Defendants’ and

licensees’ websites or Facebook pages for the purposes of

7 E.g., on January 17, 2013, blogger Casey Rusell explained on her blog how she had attended a Wine & Canvas event in Indianapolis, and enclosed photos of her finished reproduction, which is (unbeknownst to her) an unauthorized derivative work or reproduction of Ms. Duncan’s work Blue Depth. See http://handmadebycj.blogspot.com/2013/01/wine-and-canvas.html



promoting the Wine and Canvas name and Defendants’ business.

44. Defendants’ multiple acts of infringement are

widespread and performed nationwide.

45. Defendants’ acts of infringement are so extensive

that they cannot even be all included in this legal complaint.

Because Defendants have collectively committed so many acts of

infringement, Plaintiffs will have to conduct discovery before

being able to correctly estimate exactly how many such acts of

infringement occurred. Therefore, while Plaintiffs have

identified all works believed to be infringed, Plaintiffs have

only listed some, but not all, acts of infringement, in this

amended complaint.

46. Defendants’ multiple, individual, and specific acts

of infringement include, but are not limited to the following:

a. On or about July 9, 2011, the Bloomington location did a class where students painted unauthorized reproductions or derivative works of Twisting Love.

b. On or about October 23, 2011, the Columbus, Ohio, location had a class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

c. On or about February 13, 2012, the Las Vegas, Nevada location did a “grand opening”8 class

8 The “grand opening” is the first class offered by a location. As what appears to be part of the Wine and Canvas Franchisors’ business model, the “grand opening” class of nearly every location, nationwide, features an



where the students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

d. On or about April 2, 2012, the Los Angeles, California, location had a “grand opening” class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

e. On or about April 2, 2012, the San Diego, California, location had a “grand opening” class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

f. On or about May 23, 2012, the Minneapolis, Minnesota, location had a “grand opening” class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

g. On or about June 12, 2012, the Cincinnati location did a “grand opening” course where the students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

h. In or about August 7, 2012, Wine and Canvas did a course where about 40 students painted unauthorized reproductions or derivative works of Ms. Wiseman’s Red Bonsai Rain.9 This course was filmed in a news video for the South Bend Tribune.10

unauthorized reproduction or derivative work of Ms. Wiseman’s Red Bonsai Rain. 9 I Heidi Prescott, Market Basket: New Wine & Canvas business offers a creative night out, S. Bend Trib. (Aug. 9, 2012), available at http://articles.southbendtribune.com/2012-08-09/news/33123773_1_blank-canvas-market-basket-creative-night

10 Video available at https://www.youtube.com/watch?v=CIzfj9gFbpA



i. On or about August 22, 2011, the Cleveland, Ohio, location had a class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

j. On or about September 14, 2012, the Indianapolis location taught a class where the students painted unauthorized reproductions of Ms. Duncanson’s Fine Wine.

k. On or about October 17, 2012, the Cincinnati location did a class where the students painted a unauthorized reproductions or derivative works of Ms. Duncanson’s Bubbling Joy.

l. On or about October 27, 2012, the Indianapolis location did a course where the students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

m. On or about November 13, 2012, the Jacksonville, Florida, location featured a “grand opening” class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

n. On or about November 13, 2012, the South Bend location did a sold-out course where the students painted unauthorized reproductions or derivative works of Tropical Energy.

o. On or about December 27, 2012, the South Bend location did a sold-out course where the students painted unauthorized reproductions or derivative works of Tropical Energy.

p. On or about December 28, 2012, the Columbus, Ohio, location of Wine and Canvas did a sold-out course where the students painted unauthorized reproductions or derivative works of Ms. Duncanson’s painting Blue Depth



(however, they called it Blue Winter). On or about January 3, 2013, that location posted to their Facebook page photographs of their students’ unauthorized reproductions or derivative works.

q. On or about January 16, 2013, the Louisville, Kentucky, location did a “grand opening” class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

r. On or about January 16 or 20, 2013, the Indianapolis location did a course where their students painted an unauthorized reproduction, or derivative work, in black and white, of Blue Depth.

s. On or about January 25, 2013, the Los Angeles, California, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

t. On or about January 31, 2013, the Bloomington location did a course where their students made unauthorized reproductions or derivative works of Blue Depth (however, they called it Serene Blue).

u. On or about February 5, 2013, the Sioux Falls, South Dakota, location featured a “grand opening” class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

v. On or about February 6, 2013, the Jacksonville, Florida, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

w. In February 2013, the calendar on the



wineandcanvas.com website was advertising an upcoming class for February 7, 2013, in Louisville, Kentucky, where the students would be painting unauthorized reproductions or derivative works of Bubbling Joy (or, as Defendants call it, Glass Half Happy).

Knowledge and Willfulness

47. On or about February 7, 2013, Ms. Duncanson emailed

Defendant WINE & CANVAS DEVELOPMENT, LLC accusing it of

copyright infringement.

48. On or about February 7, 2013, Ms. Duncanson notified

Defendant WINE & CANVAS DEVELOPMENT, LLC on its Facebook page

that it had been copying and stealing artists’ work without

permission, recognition, or compensation.

49. Defendant WINE & CANVAS DEVELOPMENT, LLC failed and

refused to cease and desist its infringement and instead

accused Ms. Duncanson of lying.

50. After receiving these notices of infringement, acts

of infringement continued.

51. Defendants’ multiple, individual, and specific acts

of infringement include, but are not limited to the following,

all of which took place after WINE AND CANVAS DEVELOPMENT, LLC

received notice of the infringement:

x. On or about February 8, 2013, the Bloomington location did a course where their students made



unauthorized reproductions or derivative works of Blue Depth.

y. On or about February 10, 2013, the Fort Myers, Florida, location did a “grand opening” class where their students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

z. On or about February 11, 2013, the Chicago location did a course where their students painted unauthorized reproductions of a derivative work of Twisting Love.

aa. On or about February 21, 2013, the South Bend location did a course where their students made unauthorized reproductions or derivative works of Blue Depth (however, they called it Blue Winter).

bb. On or about March 13, 2013, the Grand Rapids, Michigan, location had a “grand opening” class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

cc. On or about February 26, 2013, the South Bend, Indiana, location did a course where their students made unauthorized reproductions or derivative works of Bubbling Joy (however, they called it Glass Half Happy).

dd. On or about March 25, 2013, the San Francisco location did a class where students painted unauthorized reproductions or derivative works of Spring Shine.

ee. On or about April 24, 2013, the Jacksonville, Florida, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

ff. On or about April 27, 2013 (or earlier), the



Sioux Falls, South Dakota, location did a course where their students made unauthorized derivative works of Bubbling Joy (however, they called it Glass Half Happy).

gg. On or about June 6, 2013, the Fort Wayne, Indiana, location did a class where students painted unauthorized reproductions or derivative works of Spring Shine.

hh. On or about June 14, 2013, the Fort Myers, Florida, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

ii. On or about June 24, 2013, the San Francisco location did a class where students painted unauthorized reproductions or derivative works of Spring Shine.

jj. On or about June 25, 2013, the South Bend location had its students paint unauthorized reproductions or derivative works of Tropical Energy.

kk. On or about June 27, 2013, the Indianapolis location did a sold-out class where students painted unauthorized reproductions or derivative works of Twisting Love.

ll. On or about June 27, 2013, the Jacksonville, Florida, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

mm. On or about July 10, 2013, the Fort Myers, Florida, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

nn. On or about July 15, 2013, the Baltimore, Maryland, location did a “grand opening” class



where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

oo. On or about July 16, 2013, the Portland, Oregon, location had a “grand opening” class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

pp. On or about July 17, 2013, the Charlotte, North Carolina, location had a “grand opening” class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

qq. On or about July 25, 2013, the South Bend, Indiana, had a class where its students painted unauthorized reproductions or derivative works of Tropical Energy.

rr. On or about August 10, 2013, the San Francisco location did a sold-out class where students painted unauthorized reproductions or derivative works of Spring Shine.

ss. On or about August 19, 2013, the Toledo, Ohio, location had a “grand opening” class where its students painted unauthorized reproductions or derivative works of Red Bonsai Rain. Below is one of the students showing his derivative work.

tt. On or about September 4, 2013, the Orlando, Florida, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

uu. On or about September 4, 2013, the Columbus location had its students paint unauthorized reproductions or derivative works of Tropical Energy.

vv. On or about September 16, 2013, the Kalamazoo,



Michigan, location did a class where students painted unauthorized reproductions or derivative works of Red Bonsai Rain.

ww. On or about September 24, 2013, the Detroit, Michigan, location advertised an unauthorized reproduction or derivative work of Red Bonsai Rain in anticipation of its “grand opening.”

xx. On or about October 1, 2013, the Odessa, Texas, location did a class where students painted unauthorized reproductions of a derivative work of Red Bonsai Rain.

yy. On or about November 22, 2013, the South Bend location did a course where students painted unauthorized reproductions of a derivative work of Twisting Love.

zz. On March 6, 2014, the South Bend location did a course in Indiana where students painted unauthorized reproductions or derivative works of Ms. Wiseman’s Red Bonsai Rain.

aaa. On March 14, 2014, the Orlando location did a course at the Windermere Country Club in Windermere, FL 34786 where an unknown number of students painted unauthorized reproductions or derivative works of Ms. Wiseman’s Red Bonsai Rain.

bbb. On March 16, 2014, the North Chicago location did a course where an unknown number of students painted unauthorized reproductions or derivative works of Ms. Wiseman’s Red Bonsai Rain, which they called Red Tree.

ccc. On March 27, 2014, the South Chicago location had a “grand opening” class, wherein students posted an unauthorized reproduction or derivative work of Ms. Wiseman’s Red Bonsai Rain.



ddd. On March 30, 2014, the Indianapolis location did private birthday events where an unknown number of students painted unauthorized reproductions or derivative works of Ms. Wiseman’s Red Bonsai Rain.

Unauthorized Public Displays of Reproductions

52. In addition to the painting classes, several Wine

and Canvas locations publicly displayed copies of the

infringements in their art studios. Not only is each

painting, as it hangs on the wall, an infringement, but the

photos themselves, published on the Wine and Canvas public

Facebook page(s), are another infringements. For example:

a. The below photo, posted to the Indianapolis location’s Facebook page on or about September 2, 2012, shows Ms. Duncanson’s Fine Wine on the wall:

b. The below photo, dated July 16, 2013, of the



Fort Wayne location, shows both Red Bonsai Rain and Bubbling Joy (each circled) on the wall.

c. On or about August 8, 2013, the Fort Wayne, Indiana, location posted an image to its Facebook page showing that the studio had been publicly displaying an unauthorized reproduction or derivative work of Spring Shine. (See below, with painting circled.)



Acts of Infringement AFTER Lawsuit

53. On May 5, 2014, the complaint in the instant lawsuit

was filed.

54. Even after this lawsuit was filed, acts of copyright

infringement occurred; furthermore, others appear to be

planned.

55. On or about June 14, 2014, the Indianapolis location

posted an image to its Facebook page showing that the studio

was publicly displaying an unauthorized reproduction or

derivative work of Red Bonsai Rain.

56. On or about June 17, 2014, the Indianapolis location

had a class where students painted images or derivative works

of Red Bonsai Rain.



57. On or about July 3, 2014, the Fort Wayne, Indiana,

location had a class that featured an unauthorized

reproduction or derivative of Ms. Duncanson’s Spring Shine.

58. As of July 8, 2014, the Los Angeles location was

showing a copy of Ms. Wiseman’s Red Bonsai Rain on the first

page of its section of the Wineandcanvas.com website.

59. At the time of the filing of this document (July 18,

2014), the Indianapolis location has, on its website

calendar,11 a class scheduled for July 24, 2014, to paint a

derivative copy of Ms. Duncanson’s Birds of a Feather visual

artwork. Below, at left, is a copy of Ms. Duncanson’s Birds

of a Feather; at right is the version offered in Indianapolis,

which the Wine and Canvas Franchisors have titled Seven Birds:

60. Defendants have also used an image they have been

calling Red, Red, Wine, which is so confusingly similar to Ms.

11 https://www.wineandcanvas.com/wine-and-canvas-calendar-indianapolis-in.html



Duncanson’s Fine Wine as to infringe it, and it is the

featured piece of artwork scheduled for July 23, 2014, class

at the Fort Wayne, Indiana, location.

61. All prerequisites to filing this action have been

met, or Defendants have waived them.

62. Plaintiffs have incurred attorney fees and costs in

the prosecution of this action.

COUNT I: DIRECT COPYRIGHT INFRINGEMENT

63. Plaintiffs, MEGAN AROON DUNCANSON and SHERI MARIE

WISEMAN, restate Paragraphs 1 through 60 as if fully plead

herein.

64. Plaintiffs are the owners of the Subject Works as

shown in more detail above, and as shown in the proof of

registration attached hereto.

65. Without authorization, on various dates from 2011

through to the present, Defendants have made multiple

individual and specific acts of infringement in which they

copied constituent elements of the Subject Works that are

original.

66. Defendants had knowledge that their conduct

represented infringement or recklessly disregarded possibility

of infringement.



67. After receiving notice from the copyright owner,

Defendants both (a) continued to publish and distribute

existing infringements, including those photographs posted on

Defendants’ Facebook pages, and (b) made new and additional

acts of infringements by hosting new wine and canvas classes

after receiving notice, then taking photographs (further

unauthorized derivative works) of those said infringements.

68. Although Plaintiffs are seeking actual damages and

profits herein, they each individually reserve the right to

elect to recover an award of statutory damages for all

infringements involved in the action pursuant to 17 U.S.C. §

504.

WHEREFORE, Plaintiffs pray for judgment in their favor

and against Defendants, WINE & CANVAS DEVELOPMENT, LLC; WINE

AND CANVAS IP HOLDINGS LLC; ANTHONY SCOTT, individually;

TAMARA SCOTT a/k/a TAMARA MCCRACKEN, individually; WNC OF

JACKSONVILLE, LLC; SARAH MARIE WATHEN and JOSHUA MICHAEL

WATHEN, jointly, D/B/A WINE AND CANVAS, and individually; SJ

WATHEN BLOOMINGTON LLC F/K/A WINE AND CANVAS BLOOMINGTON LLC;

YABOO LLC D/B/A WINE AND CANVAS; and WNC OF ORLANDO LLC,

jointly an severally, as follows:

a. For an order, pursuant to 17 U.S.C.A. § 502, temporarily enjoining the Defendants until the



this action is resolved, from infringing, inducing infringement of, and contributing to the infringement of Plaintiffs’ copyrighted works;

b. For an order, pursuant to 17 U.S.C.A. § 502, permanently enjoining Defendants, including their agents, officers, employees, assigns, subsidiaries, and others acting in concert with them, from infringing, inducing infringement of, and contributing to the infringement of Plaintiffs’ copyrighted works;

c. An award, pursuant to 17 U.S.C.A. § 504(b), of actual damages suffered by Plaintiffs as a result of the infringements, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.

d. Recovery of full costs, including an award of reasonable attorney fees, pursuant to 17 U.S.C.A. § 505.

e. For prejudgment and post-judgment interest on the damages awarded; and

f. For such other and further relief as this Court may deem equitable.

COUNT II: CONTRIBUTORY COPYRIGHT INFRINGEMENT


WISEMAN, restate Paragraphs 1 through 60 as if fully plead

herein.


shown in more detail above and as in Exhibit “1.”



71. Without authorization, Defendants have on multiple

and different occasions contributed to the copying of

constituent elements of the Subject Works that are original.

72. These multiple acts of infringement occurred as a

result Defendants’ intentional inducement or encouragement of

the infringement made by students and/or teachers in

Defendants’ painting classes.

73. For each act of infringement, Defendant(s) either

had knowledge that their conduct represented infringement or

recklessly disregarded possibility of infringement.

74. Even after receiving notice from the copyright

owner(s), Defendant(s) engaged in further acts of contributory

infringement.


profits herein, they reserve the right to elect to recover an

award of statutory damages for all infringements involved in

the action pursuant to 17 U.S.C. § 504.


and against the Defendants, WINE & CANVAS DEVELOPMENT, LLC;

WINE AND CANVAS IP HOLDINGS LLC; ANTHONY SCOTT, individually;

TAMARA SCOTT a/k/a TAMARA MCCRACKEN, individually; WNC OF

JACKSONVILLE, LLC; SARAH MARIE WATHEN and JOSHUA MICHAEL

WATHEN, jointly, D/B/A WINE AND CANVAS, and individually; SJ



WATHEN BLOOMINGTON LLC F/K/A WINE AND CANVAS BLOOMINGTON LLC;

YABOO LLC D/B/A WINE AND CANVAS; and WNC OF ORLANDO LLC,

jointly and severally, as follows:

a. For an order, pursuant to 17 U.S.C.A. § 502, temporarily enjoining Defendants until the this action is resolved, from infringing, inducing infringement of, and contributing to the infringement of Plaintiffs’ copyrighted works;

b. For an order, pursuant to 17 U.S.C.A. § 502, permanently enjoining Defendants, including their agents, officers, employees, assigns, subsidiaries, and others acting in concert with them, from infringing, inducing infringement of, and contributing to the infringement of Plaintiffs’ copyrighted works;







COUNT III: VICARIOUS COPYRIGHT INFRINGEMENT AGAINST WINE & CANVAS DEVELOPMENT, LLC; WINE AND CANVAS IP HOLDINGS, LLC; ANTHONY SCOTT; TAMARA SCOTT a/k/a TAMARA MCCRACKEN; SARAH MARIE WATHEN; and JOSHUA MICHAEL WATHEN


WISEMAN, restate and replead Paragraphs 1 through 60 as if

fully plead herein.


shown in more detail above and as in Exhibit “1.”

78. Without authorization, Defendants WINE & CANVAS

DEVELOPMENT, LLC; WINE AND CANVAS IP HOLDINGS, LLC; ANTHONY

SCOTT; TAMARA SCOTT a/k/a TAMARA MCCRACKEN; SARAH MARIE

WATHEN; and JOSHUA MICHAEL WATHEN (herein this Count,

cumulatively, “These Defendants”) have vicariously infringed

Plaintiffs’ copyrights by profiting directly or receiving

financial benefit from the copying of constituent elements of

Plaintiffs’ works that are original, when such infringement

was performed by the These Defendants’ licensees and

franchisees throughout the country.

79. These Defendants have, and at all times relevant

herein had, the right and ability to supervise the unlicensed

copying, reproduction, and display of copyrighted work by

their franchisees, who utilized their www.WineAndCanvas.com

website to publish images of the paintings the franchisees



intended to use for their Wine and Canvas paint-party classes.

80. Furthermore, upon information and belief, These

Defendants have encouraged and/or instructed their licensees

and franchisees, throughout the country, to infringe

Plaintiffs’ work. For instance, an overwhelming number of the

franchisees or licensees use an unauthorized derivative

painting of Red Bonsai Rain for their very first, “grand

opening” class. Furthermore, the locations all use the same

pieces of artwork for their classes.

81. These Defendants had an obvious and direct financial

interest in the franchisees’ or licensees’ unlicensed copying,

reproduction, and display of Plaintiffs’ works.

82. Even after receiving notice from the copyright

owner(s), These Defendants engage in additional and further

acts of vicarious infringement.


profits herein, they each reserve the right to elect to

recover an award of statutory damages for all infringements

involved in the action pursuant to 17 U.S.C. § 504.


and against Defendants WINE & CANVAS DEVELOPMENT, LLC; WINE

AND CANVAS IP HOLDINGS, LLC; ANTHONY SCOTT; TAMARA SCOTT a/k/a

TAMARA MCCRACKEN; SARAH MARIE WATHEN; and JOSHUA MICHAEL



WATHEN as follows:

a. For an order, pursuant to 17 U.S.C.A. § 502, temporarily enjoining These Defendants until the this action is resolved, from infringing, inducing infringement of, and contributing to the infringement of Plaintiffs’ copyrighted works;

b. For an order, pursuant to 17 U.S.C.A. § 502, permanently enjoining These Defendants, including their agents, officers, employees, assigns, subsidiaries, and others acting in concert with them, from infringing, inducing infringement of, and contributing to the infringement of Plaintiffs’ copyrighted works;





JURY DEMAND

Plaintiffs request a jury trial on all issues so triable.



CERTIFICATE OF SERVICE

I hereby certify that on July 18, 2014, I filed

electronically the foregoing with the Clerk of the Court via

CM/ECF system which will notify all persons authorized to

receive notices of electronic filing.

Respectfully submitted by Attorney for Plaintiffs,

Cynthia Conlin, P.A. 1643 Hillcrest Street Orlando, FL 32803 Tel. 407-965-5519/Fax 407-545-4397 www.ConlinPA.com /s/ Cynthia Conlin, Esq. CYNTHIA CONLIN, ESQ. Florida Bar No. 47012 Email 1: [email protected] Email 2: [email protected]


Documents

Doc 36 Amended Complaint against Wine and Canvas Development LLC et al