Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 1 of 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ALEXANDER STROSS Plaintiff, vs. NBCUNIVERSAL MEDIA, LLC, Defendant/Counterclaimant : : : : : : : : : : : CIVIL ACTION # 1-16-CV-55 JURY DEMANDED PLAINTIFF’S ORIGINAL COMPLAINT Plaintiff Alexander Stross respectfully alleges as follows for his complaint against Defendant NBCUniversal Media, LLC. PARTIES 1. Plaintiff Alexander Stross (“Plaintiff” or “Stross”) is a resident of Austin, Texas. 2. Defendant NBCUniversal Media, LLC, (“Defendant”) is a Delaware limited liability company with its principal place of business at 30 Rockefeller Plaza, New York, New York. According to records filed with the Delaware Secretary of State, Defendant may be served with process through its registered agent, Enterprise Corporate Services, LLC at 1201 North Market Street, Suite 1000, Wilmington, Delaware 19801. NATURE OF THE CLAIMS 3. This is an action for copyright infringement under 17 U.S.C. § 101 et seq. and violations of the Digital Millennium Copyright Act (“DMCA”), arising in connection with the unauthorized commercial exploitation of nine (9) of Plaintiff’s federally registered architectural photographs. 1 Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 2 of 9 JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this action under 17 U.S.C. §§ 101 et seq. (the U.S. Copyright Act); and 28 U.S.C §§ 1331 (federal question) and 1338(a) (copyrights). 5. The Court has personal jurisdiction over the Defendant because they conduct business in Texas and because, among other things, Defendant has availed itself of the forum, this claim arose out of Defendant’s continuous and systematic acts in Texas through its regular broadcasting and other business in Texas, and because Defendant has committed infringing and other illegal acts inside and outside the State of Texas which have had, and are having, an effect within the State of Texas. 6. Venue is proper under 28 U.S.C. §§ 1391(b), (c), and (d), and 28 U.S.C. § 1400(a). CONDITIONS PRECEDENT 7. All conditions precedent have been performed or have occurred. BACKGROUND FACTS 8. Plaintiff Alexander Stross is a highly regarded architectural photographer who has worked with some of the most respected names in Central Texas real estate, including Dick Clark Architecture, Wilson Goldrick Realtors, Gottesman Residential, John Luce Builder, and Fleetwood USA. Licensed uses of his works have appeared in publications such as Luxury Home Magazine, Luxe, Refine and New Home Guide; as well as appearing on billboards, online advertising, television broadcast and the like. 9. Defendant NBCUniversal Media, LLC is a worldwide media and entertainment company in the business of the “development, production, and marketing of entertainment, news 2 Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 3 of 9 and information to a global audience.”1 Defendant owns and operates a colossal portfolio of “news and entertainment television networks, a premier motion picture company, significant television production operations, a leading television stations group, world-renowned theme parks, and a suite of leading Internet-based businesses.”2 10. Defendant’s portfolio includes The Today Show - a daily live broadcast American morning news and talk television show that features several well-known television personalities, including Al Roker, Kathie Lee Gifford, Matt Lauer, and Carson Daly. The Today Show also maintains a website – Today.com - where it publishes news stories and information. 11. On or about November 11, 2011, Stross photographed a group of micro houses outside of Llano, Texas – built by lifelong girlfriends seeking a country retreat. The microhouses were designed by Austin-based architect Matt Garcia, to whom Stross granted a limited, non-assignable right to use the photographs for promotional purposes on his website. Stross timely registered each of the Photographs with the U.S. Copyright Office. See Exhibit A, hereto. 12. On or about May 8, 2015, Stross was contacted by online pop-culture media blog “Pop Sugar” – requesting permission to reprint the Photographs in a story about the project. Over the next few days – the story went viral, and Stross received dozens of additional requests, from media outlets across the country - including People Magazine, Country Living and ABC News. Photographs provided to each authorized outlet included an embedded copyright notice identifying Stross as the owner of the Photographs, as reflected below. 1 See http://www.nbcuniversal.com/who-we-are. 2 Id. 3 Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 4 of 9 13. On May 11, 2015, The Today Show aired a segment on the micro-house project entitled “Bestie Row,” prominently featuring eight (8) of the Photographs (the “On-Air Segment”). Upon information and belief, The Today Show “scraped” the Photographs from another online source (i.e., it stole them). The Photographs also appear to have been stripped of Stross’ copyright notices; however, the words “Alexander Stross” were displayed near the Photographs – presumably intended to falsely suggest that The Today Show had Stross’ authority to use them. 14. The same day as the On-Air Segment (May 11, 2015), The Today Show “Tweeted” about the story – reproducing one (1) of the Photographs, with no attribution at all (the “Tweet”).3 15. On May 12, 2015, at 1:59 p.m. (according to Defendant’s website), Defendant published an on-line article entitled “The Story Behind ‘Bestie Row’: Why Friends Built Tiny Homes Next To Each Other” (the “Web Article”). The Web Article featured the On-Air Segment, and included five (5) static images of the Photographs used in the On-Air Segment, plus one (1) additional photograph that was not used in the On-Air Segment. 3 https://twitter.com/todayshow/status/597736910170116096. 4 This time, Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 5 of 9 Defendant ascribed a false and misleading credit to each Photograph stating “Courtesy of Matt Garcia Design,” as reflected below. 5 Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 6 of 9 16. Stross emailed Defendant on June 21, 2015 – notifying it that the photo credits on the Web Article were incorrect, and that Stross was the photographer/owner. Defendant ignored the notice, prompting Stross to send a second notice on July 19, 2015 – again requesting that the credit be corrected, and further notifying Defendant that Mr. Garcia had no right to license the Photographs. The second notice was also ignored, prompting Stross to retain counsel. 17. When contacted by counsel, Defendant claimed to have obtained the Photographs - and advance permission to use them - from architect Matt Garcia. Upon information and belief, neither is true. Rather, correspondence provided to Plaintiff by Defendant, reflects the following: • On May 8, 2012, Amy Eley – a producer working for Defendant - requested press materials and photographs from Mr. Garcia, who replied that he had a photo shoot coming up, and asked her to wait until they were finished. There appears to have been no further correspondence between Ms. Eley and Mr. Garcia. • At 2:17 p.m. on May 12, 2015 – after Defendant ran the On-Air Segment; after it posted the Tweet; and after it published the Web Article - a freelance writer named Julie Pennell contacted Garcia and informed him that she was writing a piece on the houses for Today.com. She asked if new photographs had been taken, and whether she could use them (failing to advise Garcia that Defendant had already used the Photographs). Garcia informed Pennell that the scheduled photo shoot had been cancelled, and asked if she would like copies of other photographs that he had – which happened to be Stross’ Photographs. • On the evening of May 12, 2015, Garcia forwarded the Photographs to Pennell, who reforwarded them with a revised version of her written piece to Amy Eley (apparently intended to correct an error in the square footage of the micro-houses). 6 Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 7 of 9 18. As a result of the foregoing, several facts appear to be abundantly clear: (a) At the times Defendant ran the On-Air Segment, posted the Tweet, and published the Web Article, it had permission from no one to use the Photographs, (b) Defendant was well aware that Stross owned the Photographs, since it credited them to Stross in the On-Air Segment (not to mention the fact that every authorized media outlet was correctly crediting him), (c) even though Defendant knew that Stross owned the Photographs, it never once approached him for permission to use them, (d) Defendant knowingly published the Photographs in the Web Article with a false and misleading credit to Garcia – before it ever received anything from Garcia, (e) Defendant thereafter ignored two notices from Stross, and (f) when contacted by counsel, Defendant lied about the source of the Photographs, and its alleged belief that it had advance authorization to use them. 19. Stross now brings this suit for copyright infringement and violation of the DMCA. COUNT I COPYRIGHT INFRINGMENT 20. Plaintiff realleges and incorporates herein the foregoing paragraphs. 21. By its actions alleged above, Defendant has infringed Plaintiff’s copyrights in the Photographs (a total of nine copyright protected photographs). Specifically, by aggregating, copying, displaying, distributing and otherwise exploiting Plaintiff’s Photographs in the On-Air Segment and Web Article, Defendant’s actions constitute willful infringement of Plaintiff’s exclusive copyrights inasmuch as it knew, or had reason to know, that its use of Plaintiff’s Plaintiff’s was unauthorized; and/or because it acted with reckless disregard of Plaintiff’s copyrights. 7 Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 8 of 9 22. As a result of the foregoing, Plaintiff is entitled to actual damages, plus Defendant’s profits, and/or statutory damages of up to $150,000 per work infringed, plus attorney’s fees and costs of court. COUNT II TAMPERING WITH AND FALSE COPYRIGHT MANAGEMENT INFORMATION 23. Plaintiff realleges and incorporates herein the foregoing paragraphs. 24. Through its actions alleged above, Defendant has violated Section 1202 of the Digital Millennium Copyright Act by removing, altering and/or providing false copyright management information (“CMI”) related to Plaintiff’s Photographs. Upon information and belief, Defendant (a) removed the copyright notice appended to published copies of the Photographs, and (b) attributed false “courtesy credits” to the Photographs - suggesting that it had permission to use Plaintiff’s photographs when it did not. Upon further information and belief, Defendant committed these actions knowingly, and with the intent to induce, enable, facilitate and/or conceal infringement. 25. As a consequence of the foregoing, Plaintiff is entitled to actual damages plus Defendant’s profits; or in the alternative, statutory damages for each violation4 in an amount no less than $2,500 and no more than $25,000, plus costs and attorney’s fees. 17 U.S.C. §1203(b)(4), (5), and (c). JURY DEMAND 26. Plaintiff asserts his rights under the Seventh Amendment to the U.S. Constitution and demands, in accordance with Federal Rule of Civil Procedure 38, a trial by jury on all issues. 4 See Interplan Architects, Inc. v. C.L. Thomas, Inc., 4:08-CV-03181, 2010 WL 4366990 (S.D. Tex. Oct. 27, 2010) citing Goldman v. Healthcare Management Sys., Inc., 559 F. Supp. 2d 853, 868 (W.D.Mich. 2008) (each “distribution” of an infringed work constitutes a distinct “violation”). 8 Case 1:16-cv-00055-LY Document 1 Filed 01/26/16 Page 9 of 9 PRAYER Plaintiff prays for: A. An order that Defendant and all persons under its direction, control, permission or authority be enjoined and permanently restrained from exploiting the Photographs; B. For each Work infringed, an award of actual damages and/or statutory damages under 17 U.S.C. § 504(c); C. For each violation of the Digital Millennium Copyright Act, an award of actual and/or statutory damages under 17 U.S.C. § 1203(c); D. An award to Plaintiff of his reasonable costs and attorney’s fees under 17 U.S.C. §§ 505 and 1203(b)(4) & (5); E. Prejudgment and post-judgment interest on any damage award as permitted by law; and F. Such other and further relief as the Court may deem just, proper and/or necessary under the circumstances. Dated this 26th Day of January, 2016 LAW OFFICE OF BUCK MCKINNEY, PC /s/ R. Buck McKinney R. Buck McKinney State Bar No. 00784572 2203 E. 5th St. Austin, Texas 78702 Telephone: 512/236-0150 Fax: 512/444-1879 Email: mckinney@buckmckinney.com ATTORNEY FOR PLAINTIFF ALEXANDER STROSS 9 Case 1:16-cv-00055-LY Document 1-1 Filed 01/26/16 Page 1 of 2 JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS ALEXANDER STROSS NBCUNIVERSAL MEDIA, LLC (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant Travis (EXCEPT IN U.S. PLAINTIFF CASES) NOTE: (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) (c) Attorneys (Firm Name, Address, and Telephone Number) R. Buck McKinney, LAW OFFICE OF BUCK MCKINNEY, PC, PO Box 6231, Austin, Texas 78762 II. BASIS OF JURISDICTION (Place an “X” in One Box Only) ’ 1 U.S. Government Plaintiff ’ 3 Federal Question (U.S. Government Not a Party) ’ 2 U.S. Government Defendant ’ 4 Diversity (Indicate Citizenship of Parties in Item III) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State ’ 1 DEF ’ 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place ’ 4 ’ 4 of Business In This State Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place of Business In Another State ’ 5 ’ 5 Citizen or Subject of a Foreign Country ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ TORTS 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property ’ ’ ’ ’ ’ ’ ’ PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education FORFEITURE/PENALTY PERSONAL INJURY ’ 365 Personal Injury Product Liability ’ 367 Health Care/ Pharmaceutical Personal Injury Product Liability ’ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: ’ 463 Alien Detainee ’ 510 Motions to Vacate Sentence ’ 530 General ’ 535 Death Penalty Other: ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition ’ 560 Civil Detainee Conditions of Confinement ’ 625 Drug Related Seizure of Property 21 USC 881 ’ 690 Other BANKRUPTCY ’ 422 Appeal 28 USC 158 ’ 423 Withdrawal 28 USC 157 PROPERTY RIGHTS ’ 820 Copyrights ’ 830 Patent ’ 840 Trademark ’ ’ ’ ’ ’ ’ LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act ’ ’ ’ ’ ’ SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS ’ 870 Taxes (U.S. Plaintiff or Defendant) ’ 871 IRS—Third Party 26 USC 7609 OTHER STATUTES ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes IMMIGRATION ’ 462 Naturalization Application ’ 465 Other Immigration Actions V. ORIGIN (Place an “X” in One Box Only) ’ 1 Original Proceeding ’ 2 Removed from State Court ’ 3 Remanded from Appellate Court ’ 4 Reinstated or Reopened ’ 5 Transferred from Another District (specify) ’ 6 Multidistrict Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 17 USC 101, et. seq. VI. CAUSE OF ACTION Brief description of cause: Action for copyright infringement and false copyright management information relating to photographs. ’ CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE CHECK YES only if demanded in complaint: ’ Yes ’ No JURY DEMAND: DEMAND $ DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD /s/ R. Buck McKinney 01/26/2016 FOR OFFICE USE ONLY RECEIPT # AMOUNT Print APPLYING IFP Save As... JUDGE MAG. JUDGE Reset JS 44 Reverse (Rev. 12/12) Case 1:16-cv-00055-LY Document 1-1 Filed 01/26/16 Page 2 of 2 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) (b) (c) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. Case Document 1-2 Filed 01/26/16 Page 1 of 3 Exhibit Case 1:16-cv-00055-LY Document 1-2 Filed 01/26/16 Page 2 of 3 Certificate of Registration This Certificate issued under the seal of the Copyright Office in accordance with title 17, United States Code, attests that registration has been made for the work identified below. The information on this certificate has been made a part of the Copyright Office records. ....1, A f. e. . . , Register of Copyrights, United States of America Registration Number VAu 1-089-810 Effective date of registration: February 20, 2012 Title Title of Work: Alexander Stross 65,323 Photographs 9/18/2011 - 1/24/2012 Completion/Publication Year of Completion: 2011 Author ■ Author: Alexander Bayonne Stross Author Created: photograph(s) Citizen of: United States Domiciled in: United States Copyright claimant Copyright Claimant: Alexander Bayonne Stross 616 Oakland Ave, Austin, TX, 78703 Rights and Permissions Organization Name: Stross Arts Name: Alexander Bayonne Stross Email: abstross@gmail.com Telephone: 512-586-1648 Address: PO Box 300459 Austin, TX 78703 United States Certification Name: Alexander Bayonne Stross Date: January 25, 2012 Page 1 of 1 Austin, TX78703 Service Request #: 1-715599274 Registration #: VAU001089810 Case 1:16-cv-00055-LY Document 1-2 Filed 01/26/16 Page 3 of 3 I 11 0000VA00010898100101