Case 1:15-cv-04785-JMF Document 1 Filed 06/19/15 Page 1 of 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
GROSSMAN ENTERPRISES LLC,

ECF CASE

Plaintiff,

No. __-CV-____
COMPLAINTAND
DEMANDFORJURYTRIAL

-againstCOND NAST, a division of ADVANCE

MAGAZINE PUBLISHERS INC., COND NAST
ENTERTAINMENT LLC, DISCOVERY
COMMUNICATIONS, LLC, and TRUE
ENTERTAINMENT LLC,
Defendants.

Plaintiff Grossman Enterprises LLC (Grossman or Plaintiff), by its attorneys, Cahill

Partners LLP, as and for its complaint against defendants Cond Nast, a division of Advance
Magazine Publishers Inc. (Advance), and Cond Nast Entertainment LLC (Cond Nast
Entertainment) (together, Cond Nast); Discovery Communications, LLC (Discovery) and
True Entertainment LLC ( True Entertainment) (Cond Nast, Discovery and True
Entertainment are collectively referred to as Defendants), alleges:
SUMMARYOFTHEACTION
1.

This lawsuit concerns Defendants willful and repeated infringement of

Grossmans copyrighted photographs during a cable broadcast that aired on Investigation

Discovery Channel.
2.

Grossman is a limited liability company with its principal place of business in this

judicial District.
3.

Grossman was organized in order to preserve and protect the extensive and

valuable photographic archive of Henry Grossman (Henry or the Photographer).

Case 1:15-cv-04785-JMF Document 1 Filed 06/19/15 Page 2 of 23

4.

Grossman seeks damages for willful copyright infringement by the Defendants,

arising from Defendants unauthorized use in violation of the United States Copyright Act, 17
U.S.C. 101 et seq. (the Copyright Act) of three original photographs taken by Henry.
5.

Defendants, without any authorization whatsoever from Plaintiff, prepared,

reproduced, publically displayed, and publically performed (via a cable broadcast) a commercial
audiovisual work (the Episode) which incorporated exact copies of Grossmans copyrighted
photographs (the Registered Works).
6.

The Registered Works are all registered in the U.S. Copyright Office as

registration numbers VAu 1-198-319 and VAu 1-198-322.

7.

Plaintiff is the owner of all copyrights in all of the Grossman photographs

incorporated into the Episode.

8.

Plaintiff seeks legal and equitable relief to remedy Defendants willful

infringement of Plaintiffs copyrights. Plaintiff requests an order which: (1) declares that
Defendants unauthorized preparation, duplication, public performance, and public display of the
Episode willfully infringes Plaintiffs copyrights in violation of the Copyright Act; (2) prohibits
Defendants from further infringement of Plaintiffs copyrights, specifically including but not
limited to, any such use in the upcoming revised version of the Episode, set to air on Sunday
March 22, 2015; (3) requires the impoundment and destruction of all copies of the Episode (and
any revisions) in Defendants custody or control; and (4) awards actual damages and profits, as
well as statutory damages and costs, to the extent permitted under the Copyright Act.

Case 1:15-cv-04785-JMF Document 1 Filed 06/19/15 Page 3 of 23

PARTIES,JURISDICTIONANDVENUE
9.

Plaintiff Grossman is a limited liability company whose principal place of

business is located at 604 Riverside Drive #4E, New York, New York 10031.
10.

Upon information and belief, Defendant Advance Magazine Publishers Inc. is a

corporation organized under the laws of New York whose principal place of business is located
at 950 Fingerboard Road, Staten Island, New York 10305.
11.

Upon information and belief, Defendant Cond Nast Entertainment LLC is a

limited liability company organized under the laws of the state of Delaware whose principal
place of business is located at 1 World Trade Center, New York, New York 10007.
12.

Upon information and belief, Defendant Discovery Communications, LLC is a

limited liability company organized under the laws of the state of Delaware whose principal
place of business is located at One Discovery Place, Silver Spring, Maryland 20910.
13.

Upon information and belief, Defendant True Entertainment LLC is a limited

liability company organized under the laws of Delaware whose principal place of business is
located at 601 West 26th Street, Suite 1336, New York, New York 10001.
14.

This Court has subject matter jurisdiction over this action under the copyright

laws of the United States, 17 U.S.C. 101 et seq. and 28 U.S.C. 1331 and 1338.
15.

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

Defendants under CPLR 301-302 because they all do business in this state and this
jurisdiction.
16.

Venue is appropriate in this district pursuant to 28 U.S.C. 1391(a) and 1391(b)

and 1391 and 28 U.S.C. 1400(a).

FACTS

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TheRegisteredWorks

RegisteredWork1:RobertDurstwithSusanBerman
17.

Henry Grossman made a number of photographs of Robert Durst, his (presumed

deceased) first wife Kathie Durst, and Robert Dursts longtime friend (also deceased) Susan
Berman in at a party in 1981.
18.

A photograph of Susan Berman hugging Robert Durst at the 1981 party is

registered under U.S. Copyright VAu 1-198-322 (Registered Work 1).

19.

Registered Work 1 is an original work of authorship.

20.

Registered Work 1 has been fixed in a tangible medium of expression.

21.

Registered Work 1 contains substantial amounts of material created by Henry

Grossmans own artistic judgment and creativity.

22.

Registered Work 1 is copyrightable subject matter under the laws of the United

23.

Upon information and belief, Registered Work 1 has never been published

States.

without the consent of Henry or Grossman Enterprises.

24.

The effective date of registration for Registered Work 1 is January 9, 2015.

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RegisteredWork2:PhotographofSusanBermanwithUnidentifiedPartyGuest
25.

Henry Grossman photographed Susan Berman with an unidentified party guest in

1981 (Registered Work 2).

26.

Registered Work 2 is registered under U.S. Copyright VAu 1-198-319.

27.

Registered Work 2 is an original work of authorship.

28.

Registered Work 2 has been fixed in a tangible medium of expression.

29.

Registered Work 2 contains substantial amounts of material created by Henry

Grossmans own creative artistic judgment and creativity.

30.

Registered Work 2 is copyrightable subject matter under the laws of the United

31.

Upon information and belief, Registered Work 2 has never been published

States.

without the consent of Henry or Grossman Enterprises.

32.

The effective date of registration for Registered Work 2 is January 9, 2015.

RegisteredWork3:PhotographofRobertandKathieDurst
33.

Henry Grossman photographed Robert and Kathie Durst with Susan Berman in

1981 (Registered Work 3).

34.

Registered Work 3 is registered under U.S. Copyright VAu 1-198-322.

35.

Registered Work 3 is an original work of authorship.

36.

Registered Work 3 has been fixed in a tangible medium of expression.

37.

Registered Work 3 contains substantial amounts of material created by Henry

Grossmans own creative artistic judgment and creativity.

38.

Registered Work 3 is copyrightable subject matter under the laws of the United

States.

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39.

Upon information and belief, Registered Work 3 has never been published

without the consent of Henry or Grossman Enterprises.

40.

The effective date of registration for Registered Work 3 is January 9, 2015.

DefendantsInfringement
41.

Upon information and belief, Defendants had a reasonable opportunity to view the

Registered Works prior to the making of the Episode.

42.

Upon information and belief, Defendant Cond Nast had access to the Registered

Works because it had previously been granted a one-time, non-exclusive, print-only license to
reproduce the Registered Works in a 2002 article published in Talk Magazine.
43.

Talk Magazine was a close affiliate of Vanity Fair magazine; both Talk Magazine

and Vanity Fair were and are owned by Defendant Cond Nast.
44.

The Talk magazine article What Made Bobby Run is attached hereto and

incorporated by reference herein as ExhibitA.

45.

A true and correct copy of the signed license agreement between Henry Grossman

and Vanity Fair is attached hereto and incorporated by reference herein as ExhibitB.
46.

Plaintiff caused Registered Works 1, 2 and 3 to be registered effective as of

January 9, 2015.
47.

Upon information and belief, on or about January 23, 2015, Defendants aired the

Episode, which was developed from the 2002 magazine article.

48.

The Episode aired as part of the television series Vanity Fair Confidential.

49.

The Episode reproduced and publically displayed the Registered Works.

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50.

Promptly after becoming aware of Defendants unauthorized use of the Registered

Works in the Episode, counsel for Grossman contacted Defendants and advised them that any
use of Grossmans photographs in the Episode was unauthorized.
51.

Plaintiff has suffered, and continues to suffer, from the infringing activities of the

Defendants, including without limitation from Defendants failure to pay a license fee
commensurate with the value of their commercial use of the Registered Works (including in
promotions and advertising for the Episode and series) and from Defendants usurping of
Plaintiffs right to control the publication and commercial use of the Registered Works.
DefendantCondNastsInfringingActivities

52.
In its capacity as the publisher and owner of Talk Magazine, Cond Nast was in
control of the, creation, publication, and distribution of the 2002 article What Made Bobby
Run.
53.

Cond Nast owns, operates or controls Cond Nast Entertainment, which was in

control of the development, creation, and production of the Vanity Fair Confidential series, as
well as the Episode.
54.

Accordingly, upon information and belief, Cond Nast at all relevant times, had

actual or constructive knowledge of the infringing actions complained of herein.

55.

Upon information and belief, Cond Nast at all relevant times supervised and

participated materially in the infringing activities complained of herein.

56.

Upon information and belief, Cond Nast at all relevant times contributed

material support to entities and/or individuals who engaged in the infringing activities
complained of herein.

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57.

Upon information and belief, Cond Nast at all relevant times had the right to

control the infringing activities complained of herein.

58.

Upon information and belief, Cond Nast at all relevant times had the ability to

control the infringing activities complained of herein.

59.

Upon information and belief, Cond Nast realized or stood to realize a direct

financial benefit from the infringing activities complained of herein.

60.

Accordingly, Cond Nast is a contributory and/or vicarious infringer of Plaintiffs

copyrights in the Registered Works and is jointly and severally liable for any damages that may
be awarded in this action.
DefendantDiscoverysInfringingActivities
61.

Upon information and belief, Discovery owns and operates Investigation

Discovery Channel.
62.

As the owner of Investigation Discovery Channel, Discovery was in control of the

development, creation, and production of the Vanity Fair Confidential series, as well as the
Episode.1
63.

As the owner of Investigation Discovery Channel, Discovery broadcast the

Episode.
64.

The Episode provides on-screen credit to various executives of Investigation

Discovery Channel, including Senior Executive Producer, Senior Vice President of Production,
and others.

ID Investigation Discovery and Investigation Discovery are registered trademarks of

Defendant Discovery Communications, LLC.
8

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65.

Accordingly, upon information and belief, Discovery at all relevant times, had

actual or constructive knowledge of the infringing actions complained of herein.

66.

Upon information and belief, Discovery at all relevant times supervised and

participated materially in the infringing activities complained of herein.

67.

Upon information and belief, Discovery at all relevant times contributed material

support to entities and/or individuals who engaged in the infringing activities complained of
herein.
68.

Upon information and belief, Discovery at all relevant times had the right to

control the infringing activities complained of herein.

69.

Upon information and belief, Discovery at all relevant times had the ability to

control the infringing activities complained of herein.

70.

Upon information and belief, Discovery realized or stood to realize a direct

financial benefit from the infringing activities complained of herein.

71.

Accordingly, Discovery is a direct and/or contributory and/or vicarious infringer

of Plaintiffs copyrights in the Registered Works and is jointly and severally liable for any
damages that may be awarded in this action.
DefendantTrueEntertainmentLLCsInfringingActivities
72.

True Entertainment LLC was in control of the development, creation, and

production of the Vanity Fair Confidential series, as well as the Episode.

73.

Accordingly, upon information and belief, True Entertainment at all relevant

times, took the actions and had actual or constructive knowledge of the infringing actions
complained of herein.

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74.

The Episode provides on-screen credit to various executives of True

Entertainment, including Executive in Charge of Production, Director of Production, Director of

Post-Production and Director of Technical Operations.
75.

Upon information and belief, True Entertainment at all relevant times conducted,

supervised and participated materially in the infringing activities complained of herein.

76.

Upon information and belief, True Entertainment at all relevant times contributed

material support to entities and/or individuals who engaged in the infringing activities
complained of herein.
77.

Upon information and belief, True Entertainment at all relevant times had the

right to control the infringing activities complained of herein.

78.

Upon information and belief, True Entertainment at all relevant times had the

ability to control the infringing activities complained of herein.

79.

Upon information and belief, True Entertainment realized or stood to realize a

direct financial benefit from the infringing activities complained of herein.

80.

Accordingly, True Entertainment is a direct infringer and/or a contributory and/or

vicarious infringer of Plaintiffs copyrights in the Registered Works and is jointly and severally
liable for any damages that may be awarded in this action.

81.

FIRSTCLAIMFORRELIEF
(CopyrightInfringement)

Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 80

of this Complaint as if fully set forth herein.

82.

Plaintiff is the copyright owner of Plaintiffs Registered Works.

83.

Plaintiffs Registered Works are original works of authorship.

84.

Plaintiffs Registered Works have been fixed in a tangible medium of expression.

10

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85.

Plaintiffs Registered Works contain substantial amounts of material created by

Plaintiffs own artistic judgment and creativity.

86.

Plaintiffs Registered Works are copyrightable subject matter under the laws of

the United States.

87.

Defendants unauthorized copying of Plaintiffs Registered Works into the

Episode, and subsequent reproduction, public display, and public performance of the Episode,
are infringements of Plaintiffs copyrights in the Registered Works in violation of the Copyright
Act, 17 U.S.C. 106.
88.

As a direct and proximate result of Defendants foregoing acts, the Plaintiff has

been damaged in an amount to be proved at trial.

WHEREFORE, Plaintiff demands judgment as follows:
A.

Declaring, pursuant to 28 U.S.C. 2201 and 2202, that Defendants conduct

constitutes direct, contributory and vicarious infringement of Plaintiffs
copyrighted Registered Works in violation of the Copyright Act;

B.

Awarding Plaintiff, at its election, either (i) the actual damages suffered Plaintiff
and the profits derived by Defendants as a result of their infringing activities
under the Copyright Act, 17 U.S.C. 504(b), or (b) statutory damages in the
maximum amount of $150,000 for each infringement under 17 U.S.C. 504(c);

C.

Granting a permanent injunction requiring Defendants to cease and desist from

reproducing, distributing, performing, and displaying the Episode without
authorization from Plaintiff;

D.

Ordering the impoundment and destruction of all copies of the Episode;

11

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E.

Awarding Plaintiff prejudgment interest, the costs of this action, and its
reasonably incurred attorneys fees; and

F.

Awarding such other and further relief as this Court deems just and proper.
JURYTRIALDEMANDED

Pursuant to Fed. R. Civ. P. 38(b), Grossman demands a trial by jury.

Dated:

New York, New York

2015-June-19
CAHILLPARTNERSLLP

s/_John R. Cahill________
John R. Cahill
Amy J. Goldrich
Ronald W. Adelman
70 West 40th Street
New York, New York 10018
(212) 719-4400
Attorneys for Plaintiff

12

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