Masterfile vs Dean McKay: Complaint

8/3/2019 Masterfile vs Dean McKay: Complaint

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2:11-cv-00177-MCE -EFB Masterfile Corporation v. McKayMorrison C. England, Jr, presiding

Edmund F. Brennan, referral

Date filed: 01/20/2011

Date terminated: 07/11/2011

Date of last filing: 07/11/2011

Doc.

No.Dates Description

Filed & Entered: 01/20/2011 CAED Receipt

1 Filed & Entered: 01/20/2011 Complaint

3 Filed & Entered: 01/20/2011 Summons

4 Filed & Entered: 01/20/2011 Civil New Case Documents for MCE

5 Filed & Entered: 05/16/2011 Stipulation and Proposed Order

6 Filed & Entered: 05/16/2011 Minute Order

7 Filed & Entered: 05/19/2011 Stipulation and Order

8 Filed & Entered: 06/09/2011 Notice - Other

9 Filed & Entered: 06/24/2011 Notice of Voluntary Dismissal

10 Filed & Entered: 07/11/2011 Notice of Voluntary Dismissal

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COMPLAINT FOR COPYRIGHT INFRINGEMENT

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COWANDEB

AETSABRAHAMS&SHEPPARDLLP

30765PacificCoastHighway,Suite411

Malibu,California90265

STEVEN M. WEINBERG (SBN 235581)COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP30765 Pacific Coast Highway, Suite 411Malibu, California 90265Tel: (310) 457-6100

Fax: (310) 457-9555Email: [email protected]

Attorneys for PlaintiffMasterfile Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MASTERFILE CORPORATION,

Plaintiff,

v.

DEAN MCKAY, d.b.a. drdeanmckay.com,

Defendant.

Case No.

COMPLAINT FOR DAMAGES,

PROFITS, INJUNCTIVE AND OTHER

EQUITABLE RELIEF FOR FEDERAL

COPYRIGHT INFRINGEMENT AND

REMOVAL OF COPYRIGHT

MANAGEMENT INFORMATION

Plaintiff Masterfile Corporation (Masterfile), by its attorneys Cowan, DeBaets, Abrahams, &

Sheppard LLP, as and for its Complaint against Defendant DEAN MCKAY, d.b.a.

drdeanmckay.com (collectively, Defendant), alleges as follows:

1. This is an action for copyright infringement arising out of Defendantsunauthorized reproduction and use of original copyright protected photographs owned and

INTRODUCTION

Case 2:11-cv-00177-MCE -EFB Document 1 Filed 01/20/11 Page 1 of 9


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registered by Plaintiff Masterfile. Masterfile seeks injunctive and monetary relief for copyright

infringement under the provisions of the Copyright Act of the United States, as amended, 17

U.S.C. 101 et seq. and for violations of the Digital Millennium Copyright Act, 17 U.S.C.

1201 et seq.

2. Plaintiff is a well known stock photography agency with offices at 3 ConcordeGate, Fourth Floor, Toronto, Canada. Plaintiff is in the business of licensing reproduction rights

in photographs to users for a fee.

PARTIES

3. Upon information and belief, Defendant Dean McKay is a California residentengaged in the business of management consulting, doing business under the name

drdeanmckay.com.

4. This Court has subject matter jurisdiction over this action pursuant to 17 U.S.C. 501(b) and 28 U.S.C. 1331 and 1338(a).

JURISDICTION AND VENUE

5. This Court has personal jurisdiction over Defendant because Defendant, uponinformation and belief, resides in this judicial district, and engaged in the acts complained of in

this judicial district.

6. Venue is proper within this District pursuant to 28 U.S.C. 1391 and 1400.

7. On or about March 23, 2010, Plaintiff discovered that Defendant was using five(5) copyrighted photographs owned by Plaintiff (the Infringed Images) on Defendants website

www.drdeanmckay.com (the Website).

FACTS

8. Plaintiff has complied in all respects with Copyright Act of the United States andsecured the exclusive rights and privileges in and to the copyright in the Infringed Images by



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registering its claims of copyright in the Infringed Images and receiving certificates of

registration from the Copyright Office under the following registration numbers:

Plaintiff Image

Identification Number

Copyright Registration Number Registration Effective Date

700-00018365 VA 1-023-866 July 17, 2000

700-00020260 VA 1-023-866 July 17, 2000

700-00021846 VA 1-023-866 July 17, 2000

700-00023645 VA 1-023-866 July 17, 2000

700-00024044 VA 1-023-866 July 17, 2000

Copies of the certificates of registration for these Infringed Images (without the

Continuation Sheets), which were registered as individual images within compilations, are

attached hereto as Exhibit A

9. Without Plaintiffs knowledge or consent, Defendant reproduced these InfringedImages and displayed the unauthorized copies on the Website. Defendant is not, and has never

been, licensed or otherwise authorized to use the Infringed Images.

.

10. Plaintiff notified Defendant that Defendants unauthorized use of the InfringingImages constitutes copyright infringement, and provided Defendant with an opportunity to

rectify its infringing conduct, but Defendant refused to so rectify its conduct.

11. Defendants conduct as aforesaid was willful.

(Copyright Infringement Under 17 U.S.C. 101 et seq.)

COUNT ONE

12. Plaintiff incorporates by reference each and every allegation contained inparagraphs 1 through 11 above.

13. Defendants actions as described above constitute infringement of Plaintiffsexclusive rights under its registered copyright in violation of 17 U.S.C. 106 and 501.



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14. Plaintiff is entitled to recover damages, which include its actual losses and anyand all profits Defendant have made as a result of its infringing conduct. 17 U.S.C. 504.

15. Plaintiff is entitled to recover actual damages in no less than the amount of$13,170.00 or in lieu thereof, at Plaintiffs election, statutory damages in no less than the amount

of $750,000.00, plus attorneys fees and costs.

(Intentional Removal of Copyright Management Information

COUNT TWO

Under 17 U.S.C. 1202(b))

16. Plaintiff incorporates by reference each and every allegation contained inparagraphs 1 through 15 above.

17. The Infringed Images copied contained embedded copyright managementinformation protected under 17 U.S.C. 1202(b).

18. Upon information and belief, Defendant intentionally removed the copyrightmanagement information with the intent to induce, enable, facilitate, or conceal an infringement

of Plaintiffs rights under the Copyright Act.

19. Defendants conduct as aforesaid is a violation of 17 U.S.C. 1202(b).20. By reason of said violation, Plaintiff is entitled to recover statutory damages

under 17 U.S.C. 1203(c) in the maximum amount of $2,500.00 for each of the five (5)

circumventions, for a total of $12,500.00, plus costs and attorneys fees.

WHEREFORE, Plaintiff prays for the following relief against Defendant:

A. A judgment from this Court that Defendant (1) infringed Plaintiffs exclusiverights in the Infringed Images, and that this infringement was willful, and (2) wrongfully

removed Plaintiffs copyright management information embedded in the Infringed Images, and

that such removal was willful.



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B. Permanent injunctive relief in the form of an order or orders requiring thatDefendant, and its respective officers, directors, principals, representatives, agents, servants,

employees, successors and assigns, and all persons acting in concert or participation with each or

any of them, or for them, be preliminarily and permanently enjoined and restrained from:

1. copying, reproducing or making any unauthorized use of the InfringedImages or any derivative thereof, in any form; and from

2. importing, manufacturing, producing, distributing, circulating, selling,offering for sale, advertising, promoting, or displaying any simulation, reproduction, counterfeit,

or copy of the Infringed Images or any derivative thereof, or causing and/or participating in such

importation, manufacturing, producing, distributing, circulating, selling, offering for sale,

advertising, promoting, or displaying any such items; and from

3. removing any copyright management information from any other ofPlaintiffs images.

C. Preliminary and permanent injunctive relief in the form of an order or ordersrequiring that Defendant turn over for destruction all unauthorized copies of the Infringed

Images and all derivatives thereof (including without limitation the Infringed Images) and any

item or thing displaying such copies, electronic and physical, in its possession, custody or

control;

D. An award for copyright infringement of actual damages in no less than theamount of $13,170.00 or in lieu thereof, at Plaintiffs election, statutory damages in no less than

the amount of $750,000.00, plus attorneys fees and costs plus attorneys fees and costs;

E. An award of statutory damages for removal of copyright management informationin the maximum amount of $2,500.00 for each intentional removal, for a maximum sum of

$12,500.00, plus costs and attorneys fees; and

F. Such other and further relief as the Court may deem just and proper.

Dated: January 19, 2011Malibu, California



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COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP

By: ______________________________

Steven M. Weinberg

Attorneys for PlaintiffMASTERFILE CORPORATION



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EXHIBIT A TO COMPLAINT



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