Case 1:20-cv-02649 Document 1 Filed 03/30/20 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEVEN HIRSCH,
Plaintiff,

Docket No. 1:20-cv-2649

- against -

JURY TRIAL DEMANDED

ELLEN BARKIN
Defendant.
COMPLAINT
Plaintiff Steven Hirsch (“Hirsch” or “Plaintiff”) by and through his undersigned counsel,
as and for his Complaint against Defendant Ellen Barkin (“Barkin” or “Defendant”) hereby
alleges as follows:
NATURE OF THE ACTION
1.

This is an action for copyright infringement under Section 501 of the Copyright

Act and for the removal and/or alteration of copyright management information under Section
1202(b) of the Digital Millennium Copyright Act. This action arises out of Defendant’s
unauthorized reproduction and public display of a copyrighted photograph of actress and
producer Ellen Barkin flipping the bird during the Harvey Weinstein trial, owned and registered
by Hirsch, a New York based professional photographer. Accordingly, Hirsch seeks monetary
relief under the Copyright Act of the United States, as amended, 17 U.S.C. § 101 et seq.
JURISDICTION AND VENUE
2.

This claim arises under the Copyright Act, 17 U.S.C. § 101 et seq., and this Court

has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).

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3.

Upon information and belief, this Court has personal jurisdiction over Defendant

because Defendant resides and/or transacts business in New York and is registered with the New
York Department of State Division of Corporations.
4.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b).
PARTIES

5.

Hirsch is a professional photographer in the business of licensing his photographs

to online and print media for a fee having a usual place of business at 280 East 10th Street, Apt.
29., New York, New York 10009.
6.

Upon information and belief, Barkin resides at 153 West 12th Street, New York,

New York. At all times material hereto, Barkin has operated her Twitter Page at the URL:
www.Twitter.com/EllenBarkin (the “Website”).
STATEMENT OF FACTS
A.

Background and Plaintiff’s Ownership of the Photograph

7.

Hirsch photographed actress and producer Ellen Barkin flipping the bird during

the Harvey Weinstein trial (the “Photograph”). A true and correct copy of the Photograph is
attached hereto as Exhibit A.
8.

Hirsch then licensed the Photograph to the New York Post’s Page Six. On January

23, 2020, the New York Post Page Six ran an article that featured the Photograph titled Ellen
Barkin goes full diva at Harvey Weinstein trial. See URL:
https://pagesix.com/2020/01/23/ellen-barkin-goes-full-diva-at-harvey-weinstein-trial/. Hirsch’s
name was featured in a gutter credit identifying him as the photographer of the Photograph. A
true and correct copy of the article is attached hereto as Exhibit B.

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9.

Hirsch is the author of the Photograph and has at all times been the sole owner of

all right, title and interest in and to the Photograph, including the copyright thereto.
10.

The Photograph was registered with United States Copyright Office and was

given Copyright Registration Number VA 2-190-927.
B.

Defendant’s Infringing Activities

11.

On January 23, 2020, Barkin ran the Photograph on the Website where her post

stated “Mood”. See: https://twitter.com/EllenBarkin/status/1220478295843770381. A screenshot
of the Photograph on the Website is attached hereto as Exhibit C.
12.

The post received 1,000 retweets and 15,000 likes.

13.

Barkin did not license the Photograph from Plaintiff for the Website, nor did

Barkin have Plaintiff’s permission or consent to publish the Photograph on the Website.
FIRST CLAIM FOR RELIEF
(COPYRIGHT INFRINGEMENT AGAINST DEFENDANT)
(17 U.S.C. §§ 106, 501)
14.

Plaintiff incorporates by reference each and every allegation contained in

Paragraphs 1-13 above.
15.

Barkin infringed Plaintiff’s copyright in the Photograph by reproducing and

publicly displaying the Photograph on the Website. Barkin is not, and has never been, licensed or
otherwise authorized to reproduce, publically display, distribute and/or use the Photograph.
16.

The acts of Defendant complained of herein constitute infringement of Plaintiff’s

copyright and exclusive rights under copyright in violation of Sections 106 and 501 of the
Copyright Act, 17 U.S.C. §§ 106 and 501.
17.

Upon information and belief, the foregoing acts of infringement by Barkin have

been willful, intentional, and purposeful, in disregard of and indifference to Plaintiff’s rights.

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18.

As a direct and proximate cause of the infringement by the Defendant of

Plaintiff’s copyright and exclusive rights under copyright, Plaintiff is entitled to damages and
Defendant’s profits pursuant to 17 U.S.C. § 504(b) for the infringement.
19.

Alternatively, Plaintiff is entitled to statutory damages up to $150,000 per work

infringed for Defendant’s willful infringement of the Photograph, pursuant to 17 U.S.C. § 504(c).
20.

Plaintiff further is entitled to his attorney’s fees and full costs pursuant to

17 U.S.C. § 505.
SECOND CLAIM FOR RELIEF
INTEGRITY OF COPYRIGHT MANAGEMENT INFORMATION AGAINST
DEFENDANT
(17 U.S.C. § 1202)
21.

Plaintiff incorporates by reference each and every allegation contained in

Paragraphs 1-20 above.
22.

Upon information and belief, in its article on the Website, Defendant copied the

Photograph from the New York Post Page Six which contained a gutter credit underneath the
Photograph stating, “Steven Hirsch” and placed it on the Website without the gutter credit.
23.

Upon information and belief, Barkin intentionally and knowingly removed

copyright management information identifying Plaintiff as the photographer of the Photograph.
24.

The conduct of Barkin violates 17 U.S.C. § 1202(b).

25.

Upon information and belief, Barkin’s falsification, removal and/or alteration of

the aforementioned copyright management information was made without the knowledge or
consent of Plaintiff.
26.

Upon information and belief, the falsification, alteration and/or removal of said

copyright management information was made by Barkin intentionally, knowingly and with the

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intent to induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the
Photograph. Barkin also knew, or should have known, that such falsification, alteration and/or
removal of said copyright management information would induce, enable, facilitate, or conceal
their infringement of Plaintiff’s copyright in the Photograph.
27.

As a result of the wrongful conduct of Barkin as alleged herein, Plaintiff is

entitled to recover from Barkin the damages, that he sustained and will sustain, and any gains,
profits and advantages obtained by Barkin because of their violations of 17 U.S.C. § 1202,
including attorney’s fees and costs.
28.

Alternatively, Plaintiff may elect to recover from Barkin statutory damages

pursuant to 17 U.S.C. § 1203(c) (3) in a sum of at least $2,500 up to $25,000 for each violation
of 17 U.S.C. § 1202.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests judgment as follows:
1.

That Defendant Barkin be adjudged to have infringed upon Plaintiff’s copyrights
in the Photograph in violation of 17 U.S.C §§ 106 and 501;

2.

The Defendant Barkin be adjudged to have falsified, removed and/or altered
copyright management information in violation of 17 U.S.C. § 1202.

3.

That Plaintiff be awarded either: a) Plaintiff’s actual damages and Defendant’s
profits, gains or advantages of any kind attributable to Defendant’s infringement
of Plaintiff’s Photograph; or b) alternatively, statutory damages of up to $150,000
per copyrighted work infringed pursuant to 17 U.S.C. § 504;

4.

That, with regard to the Second Claim for Relief, Plaintiff be awarded either:
a) Plaintiff’s actual damages and Defendant’s profits, gains or advantages of any

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kind attributable to Defendant’s falsification, removal and/or alteration of
copyright management information; or b) alternatively, statutory damages of at
least $2,500 and up to $ 25,000 for each instance of false copyright management
information and/or removal or alteration of copyright management information
committed by Defendant pursuant to 17 U.S.C. § 1203(c);
5.

That Defendant be required to account for all profits, income, receipts, or other
benefits derived by Defendant as a result of its unlawful conduct;

6.

That Plaintiff be awarded his costs, expenses and attorneys’ fees pursuant to 17
U.S.C. § 505;

7.

That Plaintiff be awarded his costs, expenses and attorneys’ fees pursuant to
17 U.S.C. § 1203(b);

8.

That Plaintiff be awarded pre-judgment interest; and

9.

Such other and further relief as the Court may deem just and proper.
DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury on all issues so triable in accordance with Federal
Rule of Civil Procedure 38(b).
Dated: Valley Stream, New York
March 30, 2020
LIEBOWITZ LAW FIRM, PLLC
By: /s/Richard Liebowitz
Richard P. Liebowitz
11 Sunrise Plaza, Suite 305
Valley Stream, NY 11580
Tel: (516) 233-1660
RL@LiebowitzLawFirm.com
Attorneys for Plaintiff Steven Hirsch