Danger Ninja v. Estee Lauder
Content
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 1 of 17 Page ID#: 1
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Kurt M. Rylander, OSB No. 94427 [email protected] Mark E. Beatty, OSB No. 092603 [email protected] RYLANDER & ASSOCIATES PC 406 West 12th Street Vancouver, WA 98660 Tel: 360.750.9931 Fax: 360.397.0473 Attorneys for Plaintiff
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
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DANGER NINJA PRODUCTIONS, a dba of DANIEL HOYT, and DANIEL HOYT, an individual,
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Plaintiff(s),
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PK
v. COMPLAINT For Copyright Infringement, Copyright Misattribution, DMCA Violation, Unfair Trade Practices, and Equitable Relief
THE ESTEE LAUDER COMPANIES, INC., dba MAC COSMETICS, a Delaware corporation;
JURY TRIAL DEMANDED 21
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MAKE-UP ART COSMETICS, INC. dba MAC COSMETICS, a Delaware corporation; and M.A.C. COSMETICS, INC., a Delaware corporation, _ _ _ _ _ _ _ _ _Defendant(s). COMES
NOW
Plaintiff,
DANGER
NINJA PRODUCTIONS
and
DANIEL HOYT, and by this Complaint seeks money damages and equitable
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 2 of 17 Page ID#: 2 "
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relief against Defendants THE ESTEE LAUDER COMPANIES, INC., :MAKE-
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UP-COSMETICS, INC., and M.A.C. COSMETICS, INC. for: (1) copyright
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infringement; (2) copyright misattribution; (3) violation of the Digital
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Millennium Copyright Act of 1998 (DMCA); and (4) violation of Oregon's Unfair Trade Practices Act; and alleges as follows:
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JURISDICTION AND VENUE
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1.
This Court has subject matter jurisdiction over this action This
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Court has Federal Question jurisdiction over this action pursuant to 28 U.S. C.
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§§ 1331 and 1338 as an action arising under the laws of the United States,
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including Title 17 of the United States Code relating to copyrights. 2.
This Court has pendent jurisdiction over the state claims under 28
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U.S.C. § 1338(b) in that said claims are joined with substantial and related 17 18
claims under the Copyright Laws of the United States, Title 17 United States
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Code. This Court also has supplemental jurisdiction pursuant to 28 U.S.C. §
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1367. Pursuant to Rule 9(c), Plaintiff pleads that all acts and conditions
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precedent for establishing jurisdiction have been performed or have occurred.
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3.
Venue and personal jurisdiction are proper in this district
pursuant to 28 U.S.C. § 1400, 28 U.S.C. § 1391(b) and (c), and, pursuant to
24 FRCP 4, Oregon's long arm jurisdictional rules ORCP 4A, 4C, 4D, and or 4L in 25.
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that Plaintiff is informed and believes and on that basis alleges that Defendant(s) reside in this district and/or can be found in this district by virtue
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 3 of 17 Page ID#: 3
,
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of their activities, are engaged in substantial and not isolated activities in this
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district, and engaged in acts in this district and/or injured persons in this
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district in conjunction with activities carried on within this district by
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Defendants and/or in the ordinary course of trade of Defendants. 4.
Plaintiff is informed and believes and on that basis alleges that
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this Court has personal jurisdiction over Defendants by virtue of Defendants transacting and doing business in this judicial district.
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PARTIES
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5.
Danger Ninja Productions. Plaintiff, DANIEL HOYT is a
professional photographer operating under the sole proprietorship name of DANGER NINJA PRODUCTIONS, with principal place of business
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Portland, Oregon. 17 18
6.
M.A.C. Cosmetics, Inc. Plaintiff is informed and believes and on
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that basis alleges that Defendant M.A. C. Cosmetics, Inc. is a Delaware
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corporation and a wholly owned subsidiary of Make-Up Art Cosmetics, Inc.,
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conducting business in the State of Oregon, registered as a foreign corporation
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in Oregon, and by such extensive conduct, residing in the State of Oregon.
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Make-up Art Cosmetics, Inc. Plaintiff is informed and believes
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and on that basis alleges that Defendant Make-Up Art Cosmetics, Inc. is a
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Delaware corporation and a wholly owned subsidiary of The Estee Lauder Companies, Inc., conducting business in the State of Oregon, registered as a
28 29 3- COMPLAINT FOR RELIEF lll2l20ll 4,53, l4 PM HOYD.OOl
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 4 of 17 Page ID#: 4
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foreign corporation in Oregon, and by such extensive conduct, residing in the
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State of Oregon.
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The Estee Lauder Companies, Inc. Plaintiff is informed and
believes and on that basis alleges that Defendant The Estee Lauder Companies, Inc. is a Delaware corporation conducting business in the State of
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Oregon, and by such extensive conduct, residing in the State of Oregon, and 9
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further that The Estee Lauder Companies, Inc. wholly owns, dominates, and
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controls all activities and actions of Defendants Make-Up Art Cosmetics, Inc.,
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and M.A.C. Cosmetics, Inc. and that the Defendants share in-house corporate
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counsel and legal strategies, plans and knowledge.
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9.
The
website
www.maccosmetics.com
was
registered
and
maintained by The Estee Lauder Companies, Inc.
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10.
The website www.macmeover.com was registered by William
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Jelinek of Make-Up Art Cosmetics, Inc. The administrative contact is William
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Jelinek of Make-Up Art Cosmetics, Inc. His e-mail was listed as a root
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"estee.com" e-mail. The technical contact was listed as Ken Gunther of Estee
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Lauder, Inc. Plaintiff is informed and believes that William Jelinek, despite
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holding himself out as a an authorized individual of Make-Up Art Cosmetics, Inc., is actually an employee and assistant general counsel of Estee Lauder.
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Plaintiff is informed and believes and on that basis alleges that
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Defendants are commonly owned and/or managed and have overlapping officers and/or overlapping general counsels.
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12.
Hereinafter, MAC Cosmetics, Inc., Make-up Art Cosmetics, Inc.,
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and The Estee Lauder Companies, Inc. will be referred to as "Defendants" or
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"Estee Lauder Defendants".
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COMMON ALLEGATIONS OF FACT
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13.
Plaintiff is a commercial professional photographer.
In 2010,
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Plaintiff created the work titled DRIPPING BLACK. The work is a visually
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shocking and stunning visual work of art that immediately grabs the viewers'
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attention.
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Plaintiff was and is the sole owner of his copyrighted work
DRIPPING BLACK, a true and correct black and white photocopy of which is attached hereto as Exhibit "A" and incorporated herein by reference.
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15.
Plaintiffs copyrighted work has been registered by the Library of
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Congress,
Copyright
Registration
No.
VA0001790744
(hereinafter
the
"Copyrighted Work"). 16.
Plaintiffs copyright registration is prima facie evidence of the
validity, ownership, and originality of his copyrighted work.
17.
Plaintiff incorporated copyright management information ("CMI")
into all accessible digital copies of the Copyrighted Work. The CMI is displayed
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with digital copies and prints out to be visible on hard copies. 18.
Plaintiff is informed and believes and on that basis alleges that
Defendants used and/or use Plaintiffs copyrighted photograph(s) to: promote,
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 6 of 17 Page ID#: 6
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advertise,
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products including unauthorized copies of the Copyrighted Work to one or more
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purchasers and/or locations in Oregon.
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19.
and/or
sell goods and/or serVIces
In
Oregon, and has shipped
Plaintiff is informed and believes, and on that basis alleges, that
Defendants copied, published and publicly displayed the Copyrighted Work,
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and/or unauthorized derivative works created from the Copyrighted Work, in Oregon, and throughout the United States and internationally, in store
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displays, magazines, catalogues, brochures, and/or via the internet. Plaintiff is
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informed and believes and on that basis alleges that a true and correct black
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and white photocopy of one of Defendants' unlawful and violative displays used
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in the MAC Me Over campaign by Defendants at one of Defendants' stores in Oregon is attached hereto as Exhibit "B" and incorporated herein by reference
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Plaintiff is informed and believes and on that basis alleges that
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Defendant(s) acquired one or more digital copies of the Copyrighted Work
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without Plaintiffs consent, that those digital copies included Plaintiffs CMI,
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and that Defendant(s) removed or altered the CMI to display the Copyrighted
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Work without the CMI in Defendant(s) national advertising campaign(s); and
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that Defendant(s) further failed to attribute Plaintiffs work to Plaintiff in those campaign(s). Plaintiff is informed and believes, and on that basis alleges, that
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. Defendants' actions were purposeful, knowing, and intentional and in absolute 25 26 27
derogation of Plaintiffs rights. 21.
Plaintiff is informed and believes and on that basis alleges that
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 7 of 17 Page ID#: 7 1
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Defendants used Plaintiffs copyrighted work, without permission, in national
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advertising campaigns, including in stores located in Oregon, to sell
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Defendants' goods and/or services, and did not attribute that work to Plaintiff,
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and instead altered and removed attribution to Plaintiff. 22.
Plaintiff is informed and believes and on that basis alleges that
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Defendants used Plaintiffs copyrighted work, without permission, in national 9
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advertising campaigns, including in stores located in Oregon, to sell
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Defendants' goods and/or services, and in so doing, removed Plaintiffs eMI by
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which Plaintiff controls use and attribution of Plaintiffs copyrighted work.
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Plaintiff is informed and believes and on that basis alleges that
Defendants are sophisticated users of copyrighted visual works of art, that Defendants' employ and/or contract with photographers and models on a
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regular basis, and that Defendants are sophisticated and knowledgeable 18
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regarding copyright law and the rights of authors and models. 24.
Plaintiff is entitled to compensation to the extent possible for
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damages, general and special, consequential, and incidental, in an amount to
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be proven at trial, for the harm caused by Defendant, and for attorneys' fees,
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costs, and pre- and post-judgment interest. 25.
Plaintiff has suffered and likely will suffer immediate irreparable
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damage and ongoing harm by reasons of Defendants' unlawful acts unless Defendants are restrained and enjoined, and Plaintiff is without adequate remedy at law.
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 8 of 17 Page ID#: 8
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26.
Defendants' unlawful activities caused, and likely will continue to
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cause, irreparable harm to Plaintiff, which cannot be fully compensated by
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money damages.
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7.
27.
The public has an overriding interest in avoiding unlawful copying
of the work of artists and in the enforcement of copyright and trade practices
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laws, and in the proper attribution of source and association for goods and 9 10 11
services in commerce, and in maintaining the integrity of CMI systems 28.
Accordingly, Plaintiff demands an amount of money damages to
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compensate the Plaintiff for the harm caused, including but not limited to
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Defendants' profits, statutory and/or punitive' damages, as well as equitable
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relief, attorneys' fees, costs, and interest.
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FIRST CLAIM FOR RELIEF--COPYRIGHT INFRINGEMENT 17
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29.
Plaintiff re-alleges every paragraph in this Complaint.
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Plaintiff is informed and believes and on that basis alleges that by
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its aforesaid conduct Defendants willfully infringed Plaintiffs copyrighted
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works; that Defendants' actions willfully and for profit violated exclusive rights
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of the Copyright Laws of the United States; that Plaintiff owned valid copyright on works which Defendants violated in acts of improper appropriation.
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Accordingly, Defendants are liable to Plaintiff for actual damages,
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including Defendants' profits, and Defendants should be enjoined to remove and destroy all infringing displays, and enjoined to post prominently, in all
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PM HOYD.OOI
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stores and other locations where the infringing work appeared, attribution to
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Plaintiff as the author and copyright owner of the work DRIPPING BLACK for
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a period of no less than one year.
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SECOND CLAIlYI FOR RELIEF--COPYRIGHT MISATTRIBUTION
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32.
Plaintiff re-alleges every paragraph in this Complaint.
33.
Defendants
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altered
and
removed
attribution
of Plaintiffs
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copyrighted work in its infringing articles, and are liable therefore pursuant to
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Section 106A of the Copyright Act for false attribution.
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34.
Accordingly, Defendants are liable to Plaintiff for actual damages,
including Defendants' profits, and Defendants should be enjoined to remove and destroy all misattributing displays, and enjoined to post prominently, in all
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stores and other locations where the misattributing work appeared, attribution 17 18
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to Plaintiff as the author copyright owner of the work DRIPPING BLACK for a period of no less than one year..
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THIRD CLAIM FOR RELIEF--DMCA VIOLATION 35.
Plaintiff re-alleges every paragraph in this Complaint.
36.
Plaintiff
marked
his
Copyrighted
Work
with
"copyright
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management information" (CMI) within the meaning of 17 U.S.C. § 1202. 37.
Plaintiff is informed and believes and on that basis alleges that
Defendants violated the Digital Millennium Copyright Protection Act of 1998,
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 10 of 17 Page ID#: 10
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17 U.S.C. §§ 1201 et seq. by improperly, without consent of Plaintiff, removing
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or altering the CMI, and/or distributing, publishing or publicly displaying
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copies of Plaintiffs Copyrighted Work, knowing that CMI had been altered or
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removed without permission of the copyright owner or law. 38.
Pursuant to 17 U.S.C. § 1203, Defendants are liable to Plaintiff for
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damages, including: 9
a.
Actual damages suffered by Plaintiff;
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b.
Disgorgement of Defendants' Profits, including any and all
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gams and benefits Defendants received, realized or unrealized,
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from use of Plaintiffs copyrighted work; and/or,
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c.
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Statutory damages, at Plaintiffs election, for each violation
of Section 1202, in the sum of not less than $2,500 or more than
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$25,000, each use by Defendants of Plaintiffs Copyrighted Work, 17
as altered by Defendants, constituting a separate and distinct
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violation of Section 1202.
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39.
Pursuant to 17 U.S.C. § 1203, Defendants should be enjoined to
remove and destroy all infringing displays, and enjoined to post prominently, in all stores and other locations where the infringing work appea.red, attribution to Plaintiff as the author and copyright owner of the work DRIPPING BLACK
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for a period of no less than one year. 40.
Pursuant to 17 U.S.C. § 1203, Defendants are liable to Plaintiff for
attorneys' fees and costs, including the cost of expert witnesses, and interest on
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 11 of 17 Page ID#: 11 1
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all claims.
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FOURTH CLAIM FOR RELIEF-UNF..L\lR TRADE PRACTICES 41.
Plaintiff re-alleges every paragraph in this Complaint.
42.
Plaintiff is informed and believes and on that basis alleges that
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Defendant, by its aforesaid conduct, committed unfair trade practices in violation of ORS 646.605 et seq., that Defendants willfully engaged in practices
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and acts that cause likelihood of confusion or of misunderstanding as to the
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source, sponsorship, approval, or certification of Defendants' goods or services
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and/or as to affiliation, connection, or association with, or certification by,
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Plaintiff and/or Plaintiffs products and/or that represent Defendants' goods to have sponsorship or approval that they do not have or a status, qualification,
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affiliation, or connection that Defendants do not have. 17 18
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43.
Plaintiff is informed and believes and on that basis alleges that
Defendants' unlawful acts were and are knowing, willful, and malicious. 44.
Plaintiff is entitled to compensation to the extent possible
III
damages, general and special, consequential, and incidental, in an amount to be proven at trial, for the harm caused by Defendant, and for attorneys' costs, and pre- and post-judgment interest.
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45.
Plaintiff has and will suffer immediate irreparable damage and
ongoing harm to its business, reputation, and goodwill by reasons of Defendants' unlawful acts unless Defendants are restrained and enjoined, and
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Plaintiff is without adequate remedy at law. 46.
Accordingly, Plaintiff demands an amount of money damages to
compensate the Plaintiff for the harm caused, including but not limited to Defendant's profits, statutory and/or punitive damages, as well as equitable relief, attorneys' fees, costs, and interest.
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DEMAND FOR JUDGMENT & PRAYER FOR RELIEF
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WHEREFORE Plaintiff prays for judgment against the Defendants as follows: (a)
Granting judgment in favor of Plaintiff against Defendants on all
claims; (b)
Awarding
actual,
general
and
specific,
consequential
and
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incidental, damages against Defendants, jointly and severally, in an amount to 17
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be determined at trial; (c)
Awarding Plaintiff exemplary, statutory, treble damages against
Defendants, jointly and severally; (d)
Adjudging Defendants liable under United States copyright laws
to Plaintiff for statutory, and or actual damages and disgorgement of Defendants' profits, at the election of Plaintiff:
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(1) For Plaintiff and against Defendants for actual damages and/or
Defendants'
profits
from
Defendants'
acts
of
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RYLANDER & ASSOCIATES PC .lOti West 12th SU,,"'t Vanco"':er. WI\. 98660 (3UO) 7S0-9?) i
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infringement, pursuant to the Copyright Act of 1976, 17 U.s.C.
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§ 101 et seq.;
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(2) For Plaintiff and against Defendants for actual damages
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and/or
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Defendants'
profits
from
Defendants'
acts
of
misattribution, pursuant to the Copyright Act of 1976, 17
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U.s.C. § 101 et
and
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(3) For Plaintiff and against Defendants for statutory damages
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and/or actual damages and/or profits, from Defendants'
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violation of the Digital Millennium Copyright Act of 1998, at
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the election of Plaintiff;
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(e)
Enjoining Defendants to account for all gams and advantages
derived from its acts of infringement and for its other violations of law, and in
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disgorgement, reduce all such gains and advantages to money judgment in 17
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favor of Plaintiff; (f)
Enjoining Defendants to identify all locations wherein Defendants
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displayed Plaintiffs copyrighted work, and the number displays containing
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Plaintiffs copyright work at each such location;
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(g)
Enjoining Defendants to post prominently inside the front doors of
each such location a notice properly attributing Plaintiff as the author of the
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work DRIPPING BLACK for a period not less than one year; such prominence
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to be equally as prominent as Defendants original displays containing Plaintiffs work;
28 29 13- COMPLAINT FOR RELIEF 11/212011-1:53:14 pr.,·t HOYD.rn:n
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& ASSOCIATES PC .,106 \Vellt 12th Street VanCQ..... <::f, WA ~S6~O
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(h)
Enjoining Defendants to identify the location and content of any
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and all production facilities, stores, inventories, stockpiles or distribution
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centers containing infringing articles of which it has knowledge, including
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products, accessories, designs, logos, prints, electronic files, and any other things, of which Defendants has knowledge, whether owned or controlled by
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Defendants or any other party, at which any infringing, misappropriating, misattributing works violative of Plaintiffs rights may be found; (i)
destruction, of any things identified in the preceding paragraph;
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Ordering impoundment, destruction and verification of such
Awarding Plaintiffs its reasonable attorneys' fees· and costs, including costs for experts, pursuant to State and Federal law; (k)
Awarding Pre- and post- judgment interest; and
(1)
Entering such other and further relief as the Court deems
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appropriate under the circumstances.
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Plaintiff hereby demands trial by jury i
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DATED ,
112/0
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RYLANDER & ASSOCIATES PC
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P.O. Box 250 Vancouver, WA 98666 Tel: (360) 750-9931 Fax: (360) 397-0473 Of Attorneys for Plaintiff
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EXHIBIT A TO COMPAINT FOR RELIEF Danger Ninja Productions v. Estee Lauder et al.
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 17 of 17 Page ID#: 17
EXHIBIT B TO COMPAINT FOR RELIEF Danger Ninja Productions v. Estee Lauder et al.
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Kurt M. Rylander, OSB No. 94427 [email protected] Mark E. Beatty, OSB No. 092603 [email protected] RYLANDER & ASSOCIATES PC 406 West 12th Street Vancouver, WA 98660 Tel: 360.750.9931 Fax: 360.397.0473 Attorneys for Plaintiff
9
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
11
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DANGER NINJA PRODUCTIONS, a dba of DANIEL HOYT, and DANIEL HOYT, an individual,
15
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Plaintiff(s),
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20
PK
v. COMPLAINT For Copyright Infringement, Copyright Misattribution, DMCA Violation, Unfair Trade Practices, and Equitable Relief
THE ESTEE LAUDER COMPANIES, INC., dba MAC COSMETICS, a Delaware corporation;
JURY TRIAL DEMANDED 21
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25 26
27 28 29
MAKE-UP ART COSMETICS, INC. dba MAC COSMETICS, a Delaware corporation; and M.A.C. COSMETICS, INC., a Delaware corporation, _ _ _ _ _ _ _ _ _Defendant(s). COMES
NOW
Plaintiff,
DANGER
NINJA PRODUCTIONS
and
DANIEL HOYT, and by this Complaint seeks money damages and equitable
~lf3G50
1- COMPLAINT FOR RELIEF l1i2!2011 4;53;14 PM Hom 001
JD "
.
RYLANDER & ASSOClATES PC 4<l6 W.eu 12th Str"cC Vatu:ou..-"t. W>\. 9&.6iSO (360) 11()·99;t;
,
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 2 of 17 Page ID#: 2 "
1
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relief against Defendants THE ESTEE LAUDER COMPANIES, INC., :MAKE-
4
UP-COSMETICS, INC., and M.A.C. COSMETICS, INC. for: (1) copyright
5
infringement; (2) copyright misattribution; (3) violation of the Digital
6 7
Millennium Copyright Act of 1998 (DMCA); and (4) violation of Oregon's Unfair Trade Practices Act; and alleges as follows:
8 9
JURISDICTION AND VENUE
10
11
1.
This Court has subject matter jurisdiction over this action This
12
Court has Federal Question jurisdiction over this action pursuant to 28 U.S. C.
13
§§ 1331 and 1338 as an action arising under the laws of the United States,
14 15
including Title 17 of the United States Code relating to copyrights. 2.
This Court has pendent jurisdiction over the state claims under 28
16
U.S.C. § 1338(b) in that said claims are joined with substantial and related 17 18
claims under the Copyright Laws of the United States, Title 17 United States
19
Code. This Court also has supplemental jurisdiction pursuant to 28 U.S.C. §
20
1367. Pursuant to Rule 9(c), Plaintiff pleads that all acts and conditions
21
precedent for establishing jurisdiction have been performed or have occurred.
22 23
3.
Venue and personal jurisdiction are proper in this district
pursuant to 28 U.S.C. § 1400, 28 U.S.C. § 1391(b) and (c), and, pursuant to
24 FRCP 4, Oregon's long arm jurisdictional rules ORCP 4A, 4C, 4D, and or 4L in 25.
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that Plaintiff is informed and believes and on that basis alleges that Defendant(s) reside in this district and/or can be found in this district by virtue
28 29 2- COMPLAINT FOR RELIEF 111212011 4:53:14 PM HOYD.OOI
·
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 3 of 17 Page ID#: 3
,
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of their activities, are engaged in substantial and not isolated activities in this
4
district, and engaged in acts in this district and/or injured persons in this
5
district in conjunction with activities carried on within this district by
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Defendants and/or in the ordinary course of trade of Defendants. 4.
Plaintiff is informed and believes and on that basis alleges that
8 9 10
this Court has personal jurisdiction over Defendants by virtue of Defendants transacting and doing business in this judicial district.
11
PARTIES
12 13 14
15
5.
Danger Ninja Productions. Plaintiff, DANIEL HOYT is a
professional photographer operating under the sole proprietorship name of DANGER NINJA PRODUCTIONS, with principal place of business
III
16
Portland, Oregon. 17 18
6.
M.A.C. Cosmetics, Inc. Plaintiff is informed and believes and on
19
that basis alleges that Defendant M.A. C. Cosmetics, Inc. is a Delaware
20
corporation and a wholly owned subsidiary of Make-Up Art Cosmetics, Inc.,
21
conducting business in the State of Oregon, registered as a foreign corporation
22 23
in Oregon, and by such extensive conduct, residing in the State of Oregon.
7.
Make-up Art Cosmetics, Inc. Plaintiff is informed and believes
24
and on that basis alleges that Defendant Make-Up Art Cosmetics, Inc. is a
25 26
27
Delaware corporation and a wholly owned subsidiary of The Estee Lauder Companies, Inc., conducting business in the State of Oregon, registered as a
28 29 3- COMPLAINT FOR RELIEF lll2l20ll 4,53, l4 PM HOYD.OOl
m
RYLANDER
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& ASSOCIATES PC -106 West 12!h SU-e"t WA 9S66D
V4lncou~·e~.
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 4 of 17 Page ID#: 4
2 3
foreign corporation in Oregon, and by such extensive conduct, residing in the
4
State of Oregon.
5 6 7
8.
The Estee Lauder Companies, Inc. Plaintiff is informed and
believes and on that basis alleges that Defendant The Estee Lauder Companies, Inc. is a Delaware corporation conducting business in the State of
8
Oregon, and by such extensive conduct, residing in the State of Oregon, and 9
10
further that The Estee Lauder Companies, Inc. wholly owns, dominates, and
11
controls all activities and actions of Defendants Make-Up Art Cosmetics, Inc.,
12
and M.A.C. Cosmetics, Inc. and that the Defendants share in-house corporate
13
counsel and legal strategies, plans and knowledge.
14
15
9.
The
website
www.maccosmetics.com
was
registered
and
maintained by The Estee Lauder Companies, Inc.
16
10.
The website www.macmeover.com was registered by William
17 18
Jelinek of Make-Up Art Cosmetics, Inc. The administrative contact is William
19
Jelinek of Make-Up Art Cosmetics, Inc. His e-mail was listed as a root
20
"estee.com" e-mail. The technical contact was listed as Ken Gunther of Estee
21
Lauder, Inc. Plaintiff is informed and believes that William Jelinek, despite
22
23
holding himself out as a an authorized individual of Make-Up Art Cosmetics, Inc., is actually an employee and assistant general counsel of Estee Lauder.
24
11.
Plaintiff is informed and believes and on that basis alleges that
25 26 27
Defendants are commonly owned and/or managed and have overlapping officers and/or overlapping general counsels.
28 29 4- COMPLAINT FOR RELIEF 11/2120114,53,14 PM HOYD.OOI
IB _
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RYLANDER & ASSOCIATES PC ..106 Weill L2th Street Vancou..-er, WA 98660 (360) 7."lO.99]!
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 5 of 17 Page ID#: 5
2 3
12.
Hereinafter, MAC Cosmetics, Inc., Make-up Art Cosmetics, Inc.,
4
and The Estee Lauder Companies, Inc. will be referred to as "Defendants" or
5
"Estee Lauder Defendants".
6 7
COMMON ALLEGATIONS OF FACT
8
13.
Plaintiff is a commercial professional photographer.
In 2010,
9
10
Plaintiff created the work titled DRIPPING BLACK. The work is a visually
11
shocking and stunning visual work of art that immediately grabs the viewers'
12
attention.
13
14.
14 15
Plaintiff was and is the sole owner of his copyrighted work
DRIPPING BLACK, a true and correct black and white photocopy of which is attached hereto as Exhibit "A" and incorporated herein by reference.
16
15.
Plaintiffs copyrighted work has been registered by the Library of
17 18
19 20
21
22 23
Congress,
Copyright
Registration
No.
VA0001790744
(hereinafter
the
"Copyrighted Work"). 16.
Plaintiffs copyright registration is prima facie evidence of the
validity, ownership, and originality of his copyrighted work.
17.
Plaintiff incorporated copyright management information ("CMI")
into all accessible digital copies of the Copyrighted Work. The CMI is displayed
24
25 26
27
with digital copies and prints out to be visible on hard copies. 18.
Plaintiff is informed and believes and on that basis alleges that
Defendants used and/or use Plaintiffs copyrighted photograph(s) to: promote,
28
29 5- COMPLAINT FOR RELIEF \1/2120114;:;3;14 PM HOYD.OOI
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 6 of 17 Page ID#: 6
2 3
advertise,
4
products including unauthorized copies of the Copyrighted Work to one or more
5
purchasers and/or locations in Oregon.
6 7
19.
and/or
sell goods and/or serVIces
In
Oregon, and has shipped
Plaintiff is informed and believes, and on that basis alleges, that
Defendants copied, published and publicly displayed the Copyrighted Work,
8 9
10
and/or unauthorized derivative works created from the Copyrighted Work, in Oregon, and throughout the United States and internationally, in store
11
displays, magazines, catalogues, brochures, and/or via the internet. Plaintiff is
12
informed and believes and on that basis alleges that a true and correct black
13
and white photocopy of one of Defendants' unlawful and violative displays used
14 15
in the MAC Me Over campaign by Defendants at one of Defendants' stores in Oregon is attached hereto as Exhibit "B" and incorporated herein by reference
16
20.
Plaintiff is informed and believes and on that basis alleges that
17 18
Defendant(s) acquired one or more digital copies of the Copyrighted Work
19
without Plaintiffs consent, that those digital copies included Plaintiffs CMI,
20
and that Defendant(s) removed or altered the CMI to display the Copyrighted
21
Work without the CMI in Defendant(s) national advertising campaign(s); and
22 23
that Defendant(s) further failed to attribute Plaintiffs work to Plaintiff in those campaign(s). Plaintiff is informed and believes, and on that basis alleges, that
24
. Defendants' actions were purposeful, knowing, and intentional and in absolute 25 26 27
derogation of Plaintiffs rights. 21.
Plaintiff is informed and believes and on that basis alleges that
28 29 6- COMPLAINT FOR RELIEF 1!I2f2011 4:53:14 PM HOWODI
m _ . "
RYLANDER & ASSOCIATES PC
•
..l06 WCH 12th Str.ec, Vur";:m.. ",,r, WA 9"8660 (360) 750-9931
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 7 of 17 Page ID#: 7 1
2 3
Defendants used Plaintiffs copyrighted work, without permission, in national
4
advertising campaigns, including in stores located in Oregon, to sell
5
Defendants' goods and/or services, and did not attribute that work to Plaintiff,
6
7
and instead altered and removed attribution to Plaintiff. 22.
Plaintiff is informed and believes and on that basis alleges that
8
Defendants used Plaintiffs copyrighted work, without permission, in national 9
10
advertising campaigns, including in stores located in Oregon, to sell
11
Defendants' goods and/or services, and in so doing, removed Plaintiffs eMI by
12
which Plaintiff controls use and attribution of Plaintiffs copyrighted work.
13 14
15
23.
Plaintiff is informed and believes and on that basis alleges that
Defendants are sophisticated users of copyrighted visual works of art, that Defendants' employ and/or contract with photographers and models on a
16
regular basis, and that Defendants are sophisticated and knowledgeable 18
19
regarding copyright law and the rights of authors and models. 24.
Plaintiff is entitled to compensation to the extent possible for
20
damages, general and special, consequential, and incidental, in an amount to
21
be proven at trial, for the harm caused by Defendant, and for attorneys' fees,
22 23
costs, and pre- and post-judgment interest. 25.
Plaintiff has suffered and likely will suffer immediate irreparable
24 25 26 27
damage and ongoing harm by reasons of Defendants' unlawful acts unless Defendants are restrained and enjoined, and Plaintiff is without adequate remedy at law.
28 29 7- COMPLAINT FOR RELIEF 1112120114:53:14 PM HOYD.OOI
m
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& ASSOCIATES PC -106 \\'cst 12lb Strec~ Vancou\'cr, WA 98660 (360) ;.50-9931
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 8 of 17 Page ID#: 8
2 3
26.
Defendants' unlawful activities caused, and likely will continue to
4
cause, irreparable harm to Plaintiff, which cannot be fully compensated by
5
money damages.
6
7.
27.
The public has an overriding interest in avoiding unlawful copying
of the work of artists and in the enforcement of copyright and trade practices
8
laws, and in the proper attribution of source and association for goods and 9 10 11
services in commerce, and in maintaining the integrity of CMI systems 28.
Accordingly, Plaintiff demands an amount of money damages to
12
compensate the Plaintiff for the harm caused, including but not limited to
13
Defendants' profits, statutory and/or punitive' damages, as well as equitable
14
relief, attorneys' fees, costs, and interest.
15 16
FIRST CLAIM FOR RELIEF--COPYRIGHT INFRINGEMENT 17
18 19
29.
Plaintiff re-alleges every paragraph in this Complaint.
30.
Plaintiff is informed and believes and on that basis alleges that by
20
its aforesaid conduct Defendants willfully infringed Plaintiffs copyrighted
21
works; that Defendants' actions willfully and for profit violated exclusive rights
22 23
of the Copyright Laws of the United States; that Plaintiff owned valid copyright on works which Defendants violated in acts of improper appropriation.
24 31.
Accordingly, Defendants are liable to Plaintiff for actual damages,
25 26
27
including Defendants' profits, and Defendants should be enjoined to remove and destroy all infringing displays, and enjoined to post prominently, in all
28 29 8--- COMPLAINT FOR RELIEF 1112/20114:53:14
PM HOYD.OOI
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 9 of 17 Page ID#: 9 1
2 3
stores and other locations where the infringing work appeared, attribution to
4
Plaintiff as the author and copyright owner of the work DRIPPING BLACK for
5
a period of no less than one year.
6 7
SECOND CLAIlYI FOR RELIEF--COPYRIGHT MISATTRIBUTION
8
32.
Plaintiff re-alleges every paragraph in this Complaint.
33.
Defendants
9
10
altered
and
removed
attribution
of Plaintiffs
11
copyrighted work in its infringing articles, and are liable therefore pursuant to
12
Section 106A of the Copyright Act for false attribution.
13
14 15
34.
Accordingly, Defendants are liable to Plaintiff for actual damages,
including Defendants' profits, and Defendants should be enjoined to remove and destroy all misattributing displays, and enjoined to post prominently, in all
16
stores and other locations where the misattributing work appeared, attribution 17 18
19
to Plaintiff as the author copyright owner of the work DRIPPING BLACK for a period of no less than one year..
20 21
22
23
THIRD CLAIM FOR RELIEF--DMCA VIOLATION 35.
Plaintiff re-alleges every paragraph in this Complaint.
36.
Plaintiff
marked
his
Copyrighted
Work
with
"copyright
24
25 26 27
management information" (CMI) within the meaning of 17 U.S.C. § 1202. 37.
Plaintiff is informed and believes and on that basis alleges that
Defendants violated the Digital Millennium Copyright Protection Act of 1998,
28 29 9--- COMPLAINT FOR RELIEF 111212011 4:5H4 PM HOYD.OOI
W
RYLANDER
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,
& ASSOCIATES PC
. l O6
WelJl 12th Street
V"ncoll~·e~.
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Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 10 of 17 Page ID#: 10
2 3
17 U.S.C. §§ 1201 et seq. by improperly, without consent of Plaintiff, removing
4
or altering the CMI, and/or distributing, publishing or publicly displaying
5
copies of Plaintiffs Copyrighted Work, knowing that CMI had been altered or
6 7
removed without permission of the copyright owner or law. 38.
Pursuant to 17 U.S.C. § 1203, Defendants are liable to Plaintiff for
8
damages, including: 9
a.
Actual damages suffered by Plaintiff;
11
b.
Disgorgement of Defendants' Profits, including any and all
12
gams and benefits Defendants received, realized or unrealized,
13
from use of Plaintiffs copyrighted work; and/or,
10
14
c.
15
Statutory damages, at Plaintiffs election, for each violation
of Section 1202, in the sum of not less than $2,500 or more than
16
$25,000, each use by Defendants of Plaintiffs Copyrighted Work, 17
as altered by Defendants, constituting a separate and distinct
18
violation of Section 1202.
19
20 21
22 23
39.
Pursuant to 17 U.S.C. § 1203, Defendants should be enjoined to
remove and destroy all infringing displays, and enjoined to post prominently, in all stores and other locations where the infringing work appea.red, attribution to Plaintiff as the author and copyright owner of the work DRIPPING BLACK
24
25 26
27
for a period of no less than one year. 40.
Pursuant to 17 U.S.C. § 1203, Defendants are liable to Plaintiff for
attorneys' fees and costs, including the cost of expert witnesses, and interest on
28 29 10- COMPLAINT FOR RELIEF 111212011 4:63:14 PM HOYD.OOI
m
RYLANDER
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& ASSOCIATES PC .106 West 12th Street Vancouver, WA 98660 (360) ;'0-9931
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 11 of 17 Page ID#: 11 1
2 3
all claims.
4
5 6 7
FOURTH CLAIM FOR RELIEF-UNF..L\lR TRADE PRACTICES 41.
Plaintiff re-alleges every paragraph in this Complaint.
42.
Plaintiff is informed and believes and on that basis alleges that
8
9 10
Defendant, by its aforesaid conduct, committed unfair trade practices in violation of ORS 646.605 et seq., that Defendants willfully engaged in practices
11
and acts that cause likelihood of confusion or of misunderstanding as to the
12
source, sponsorship, approval, or certification of Defendants' goods or services
13
and/or as to affiliation, connection, or association with, or certification by,
14 15
Plaintiff and/or Plaintiffs products and/or that represent Defendants' goods to have sponsorship or approval that they do not have or a status, qualification,
16
affiliation, or connection that Defendants do not have. 17 18
19 20 21
22 23
43.
Plaintiff is informed and believes and on that basis alleges that
Defendants' unlawful acts were and are knowing, willful, and malicious. 44.
Plaintiff is entitled to compensation to the extent possible
III
damages, general and special, consequential, and incidental, in an amount to be proven at trial, for the harm caused by Defendant, and for attorneys' costs, and pre- and post-judgment interest.
24 25 26 27
45.
Plaintiff has and will suffer immediate irreparable damage and
ongoing harm to its business, reputation, and goodwill by reasons of Defendants' unlawful acts unless Defendants are restrained and enjoined, and
28
29 11- COMPLAINT FOR RELIEF 111212011 4:53:14 PM HOYD.OOl
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 12 of 17 Page ID#: 12
2 3 4
5 6 7
Plaintiff is without adequate remedy at law. 46.
Accordingly, Plaintiff demands an amount of money damages to
compensate the Plaintiff for the harm caused, including but not limited to Defendant's profits, statutory and/or punitive damages, as well as equitable relief, attorneys' fees, costs, and interest.
8
9
DEMAND FOR JUDGMENT & PRAYER FOR RELIEF
10 11 12
13 14
15
WHEREFORE Plaintiff prays for judgment against the Defendants as follows: (a)
Granting judgment in favor of Plaintiff against Defendants on all
claims; (b)
Awarding
actual,
general
and
specific,
consequential
and
16
incidental, damages against Defendants, jointly and severally, in an amount to 17
18
19 20 21
22
23
be determined at trial; (c)
Awarding Plaintiff exemplary, statutory, treble damages against
Defendants, jointly and severally; (d)
Adjudging Defendants liable under United States copyright laws
to Plaintiff for statutory, and or actual damages and disgorgement of Defendants' profits, at the election of Plaintiff:
24
25 26
(1) For Plaintiff and against Defendants for actual damages and/or
Defendants'
profits
from
Defendants'
acts
of
27 28 29 12- COMPLAINT FOR RELIEF 11I2!'2011 4:53: 14 PM HOYD.OOl
RYLANDER & ASSOCIATES PC .lOti West 12th SU,,"'t Vanco"':er. WI\. 98660 (3UO) 7S0-9?) i
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 13 of 17 Page ID#: 13 1
2
3
infringement, pursuant to the Copyright Act of 1976, 17 U.s.C.
4
§ 101 et seq.;
5
(2) For Plaintiff and against Defendants for actual damages
6
and/or
7
Defendants'
profits
from
Defendants'
acts
of
misattribution, pursuant to the Copyright Act of 1976, 17
8
U.s.C. § 101 et
and
9
(3) For Plaintiff and against Defendants for statutory damages
10 11
and/or actual damages and/or profits, from Defendants'
12
violation of the Digital Millennium Copyright Act of 1998, at
13
the election of Plaintiff;
14 15
(e)
Enjoining Defendants to account for all gams and advantages
derived from its acts of infringement and for its other violations of law, and in
16
disgorgement, reduce all such gains and advantages to money judgment in 17
18 19
favor of Plaintiff; (f)
Enjoining Defendants to identify all locations wherein Defendants
20
displayed Plaintiffs copyrighted work, and the number displays containing
21
Plaintiffs copyright work at each such location;
22
23
(g)
Enjoining Defendants to post prominently inside the front doors of
each such location a notice properly attributing Plaintiff as the author of the
24
work DRIPPING BLACK for a period not less than one year; such prominence
25 26 27
to be equally as prominent as Defendants original displays containing Plaintiffs work;
28 29 13- COMPLAINT FOR RELIEF 11/212011-1:53:14 pr.,·t HOYD.rn:n
m
RYIANDER
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& ASSOCIATES PC .,106 \Vellt 12th Street VanCQ..... <::f, WA ~S6~O
(360) 750-9931
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 14 of 17 Page ID#: 14 1 2
3
(h)
Enjoining Defendants to identify the location and content of any
4
and all production facilities, stores, inventories, stockpiles or distribution
5
centers containing infringing articles of which it has knowledge, including
6 7
products, accessories, designs, logos, prints, electronic files, and any other things, of which Defendants has knowledge, whether owned or controlled by
8 9 10
11 12
Defendants or any other party, at which any infringing, misappropriating, misattributing works violative of Plaintiffs rights may be found; (i)
destruction, of any things identified in the preceding paragraph;
13 14
15
Ordering impoundment, destruction and verification of such
Awarding Plaintiffs its reasonable attorneys' fees· and costs, including costs for experts, pursuant to State and Federal law; (k)
Awarding Pre- and post- judgment interest; and
(1)
Entering such other and further relief as the Court deems
16
17
18
appropriate under the circumstances.
19
20 21
Plaintiff hereby demands trial by jury i
22 23
DATED ,
112/0
24
25 26
27 28
29 14- COMPLAINT FOR RELIEF 1112/2011 2:5N7 PM HOYIJ.OOl
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 15 of 17 Page ID#: 15 o
• 1 2
3
RYLANDER & ASSOCIATES PC
4
P.O. Box 250 Vancouver, WA 98666 Tel: (360) 750-9931 Fax: (360) 397-0473 Of Attorneys for Plaintiff
5
6 7
8 9 10 11 12 13
14 15 16 17
18
19
20 21 22
23 24 25 26 27
28
29 15- COMPLAINT FOR RELIEF 11l2!2011 2:5<1"47 PM HOYD.OOI
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 16 of 17 Page ID#: 16
EXHIBIT A TO COMPAINT FOR RELIEF Danger Ninja Productions v. Estee Lauder et al.
Case 3:11cv01321PK Document 1 Filed 11/03/11 Page 17 of 17 Page ID#: 17
EXHIBIT B TO COMPAINT FOR RELIEF Danger Ninja Productions v. Estee Lauder et al.
