Moore v. Horrorhound - Second Amended Complaint PDF

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 1 of 24 PageID# 321
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
Ian Mattlock Moore
Plaintiff,
v.
HorrorHound Ltd, LLC
Defendant.
No. 3:14-cv-00836-JRS
JURY TRIAL DEMANDED
PLAINTIFFS SECOND AMENDED ORIGINAL COMPLAINT

COMES NOW, Plaintiff Ian Mattlock Moore (Plaintiff), by counsel, pursuant to
Federal Rules of Civil Procedure 15(a)(2) and the Courts Order Granting Leave to Amend, and
files Plaintiffs Second Amended Original Complaint against Defendant HorrorHound Ltd, LLC
(Defendant), alleging as follows:
PARTIES
1.
Plaintiff, Ian Mattlock Moore is a citizen and resident of Maidens, Virginia. He is
a well-known expert in the field of horror films.

2.
Upon information and belief, Defendant HorrorHound Ltd, LLC, is an Ohio
limited liability company with a business address of 1197 Muirwood Lane, Batavia, Ohio 45103.
Defendant publishes a magazine entitled HorrorHound marketed to fans of horror culture,
including movies, television programs, toys and collectible items.
JURISDICTION AND VENUE

3.
This Court has subject matter jurisdiction over trademark infringement arising
under the Lanham Act pursuant to 15 U.S.C. 1125(a) and 28 U.S.C. 1331, 1338(a). This
Court has subject matter jurisdiction over copyright infringement arising under the Copyright
Act of the United States pursuant to 17 U.S.C. 106, 501 and 28 U.S.C. 1338(a). This Court
has subject matter jurisdiction over the declaratory judgment action pursuant to 28 U.S.C.
2201. This Court has supplemental jurisdiction over Plaintiffs related state and common law
claims pursuant to 28 U.S.C. 1138 and 1367(a).
4.
This Court has personal jurisdiction over Defendant because, on information and
belief, Defendant has distributed or sold infringing merchandise within this District, has
distributed or sold infringing merchandise to various companies with the knowledge that those
companies sell merchandise in retail stores in Virginia, has engaged in acts or omissions outside
of Virginia causing injury within Virginia, has manufactured or distributed products in Virginia
causing injury within Virginia, has distributed products used or consumed within Virginia in the
ordinary course of trade, or has otherwise made or established contacts with Virginia sufficient
to permit the exercise of personal jurisdiction.
5.
Venue is proper pursuant to 28 U.S.C. 1391(b)(2) because a substantial part of
the events or omissions giving rise to Plaintiffs claims occurred in this District.
6.
In accordance with Local Civil Rule 3, filing in the Richmond Division is proper
for the same reasons venue in the Eastern District is proper, namely that a substantial part of the
events or omissions giving rise to Plaintiffs claims occurred in this Division.
COMMON FACTS
7.
Plaintiffs reputation as an expert in the history, and collectability of, horror films
precedes him. He is well-known within the horror culture community as the primary catalyst for
the craze of collecting Video Home System (VHS) horror films.
8.
In 2008, Plaintiff conceived, developed, wrote, designed, and was the creative
force behind a series of articles entitled Video Invasion, TM which were published in
Defendants HorrorHound magazine.
9.
The series focused on the rise of the Video Home System (VHS) in America and
chronicled the many producers of horror-themed movies. Plaintiffs series was featured in
Defendants HorrorHound magazine from Issue 12, published in July, 2008, through Issue 39,
published in January, 2013.
10.
In total, Plaintiff was responsible for twenty-six articles for the VIDEO
INVASIONTM series. In addition, Plaintiff authored numerous other articles for Defendant,
including an article entitled The Prowler, published in Issue 22, and an article entitled Tech
Specs European Invasion, published in Issue 25.
11.
Each VIDEO INVASIONTM article that Plaintiff penned combined Plaintiffs text
with his layout and design, which was unique to the VIDEO INVASIONTM series. This
combination was intended to, and did, constitute a single unitary whole in the form of a final
published article.
12.
Fans of HorrorHound magazine have especially loved the VIDEO INVASIONTM
series. In 2009, Plaintiff was nominated for a Rondo Hatton Classic Horror Award and was
named Runner-Up for certain of VIDEO INVASIONTM articles. Later, in 2013, Plaintiff was
interviewed for the documentary Adjust Your Tracking regarding the VHS culture. One
commentator on the documentary stated that Plaintiff was well-known as the HorrorHound
columnist that popularized this [VHS collecting] craze.
13.
On information and belief, sales of Defendants HorrorHound magazine
increased substantially in part due to the inclusion of the successful VIDEO INVASION TM series
in the magazine.
14.
Despite the increased success of Defendant, Plaintiff received only sporadic and
unpredictable payments for his articles. These sporadic payments were generally in amounts
between fifty to one-hundred dollars ($50.00 to $100.00) per article. Plaintiff often had to
demand these paltry payments before Defendant would forward a check or transfer the funds via
the online service PayPal.
15.
In addition, Plaintiff often purchased goods and services on behalf of Defendant,
with the promise that Plaintiff would be reimbursed. Defendant, however, never paid Plaintiff for
these expenditures.
16.
On information and belief, Defendant sells its magazines for $6.99 (six dollars
and ninety-nine cents) each and produces six (6) issues per year. On information and belief,
Defendant produces no fewer than thirty thousand (30,000) copies of each issue, and has
produced up to seventy-five thousand (75,000) copies of some issues. Thus, on information and
belief, Defendants sales per year range between $1,260,000 and $3,150,000.
17.
HorrorHound magazines popularity is evidenced by the more than thirteen
thousand (13,000) likes the magazines Facebook page has received and the more than twenty
thousand (20,000) individuals that follow HorrorHound on Twitter. On information and belief,
Defendant sells its magazine internationally through its website and retail outlets, including big-
box chains such as Barnes & Noble, Hastings and Books A Million as well as local comic book
stores.
18.
In early 2013, Plaintiff and Defendant ended their working relationship. Plaintiff
and Defendant agreed at that time that the VIDEO INVASIONTM series would no longer be
published in Defendants magazine. In addition, Plaintiffs termination of his relationship with
Defendant constituted a termination of Plaintiffs consent for Defendant to publish Plaintiffs
name in the HorrorHound magazine and to use Plaintiffs VIDEO INVASIONTM trademark.
19.
Despite Plaintiffs decision to discontinue writing for Defendant, Defendant
continued to list Plaintiff as a writer in Issues 40, 41, 42, 43, 44 and 45 (an entire years worth of
issues) of Defendants magazine. On information and belief, Defendant included Plaintiff as a
contributing writer in Defendants magazine in an effort to appeal to Plaintiffs fan base and
drive sales of Defendants magazine.
20.
In Issue 41, Defendant announced the return of the VIDEO INVASIONTM series,
to be included in the next issue, although Plaintiff was no longer affiliated with the magazine.
Defendant never approached Plaintiff requesting permission to use Plaintiffs VIDEO
INVASIONTM Mark or to create a derivative of his copyrighted work.
21.
In Issue 46, published in March, 2014, Defendant printed an article entitled VHS
Invasion. This article focused on the same subject matter as Plaintiffs VIDEO INVASION TM
series and constituted a derivative work of each of the articles in the VIDEO INVASION TM
series.
22.
Furthermore, the VHS Invasion articles look and feel was almost identical to
the look and feel of Plaintiffs VIDEO INVASIONTM series.

23.
Defendant published another VHS Invasion article in Issue 49.
24.
In Issue 50, Defendant published a HorrorHound Magazine Index. This index
listed all of Plaintiffs previously published VIDEO INVASIONTM articles as VHS Invasion
articles, assuming credit for all of the VIDEO INVASIONTM articles and attempting to re-write
history by removing references to the VIDEO INVASIONTM series. Despite this attempt to rewrite history, Defendant foiled part of the plan itself by including in the index the cover of Issue
22, where the VIDEO INVASIONTM series is promoted prominently on the front and center
portion of the cover, a copy of which is attached hereto as Exhibit 1.
25.
Defendant again published a VHS Invasion article in Issue 50.
26.
Each of the VHS Invasion articles constituted derivative works of Plaintiffs
copyright in the VIDEO INVASIONTM articles.

27.
Throughout 2013 and 2014, on information and belief, Defendant continued to
inform advertisers that upcoming issues would contain the VIDEO INVASIONTM series. Due to
Defendants actions, these advertisers promoted HorrorHound magazine by, in part, advertising
the inclusion of the VIDEO INVASIONTM series.
28.
Furthermore, as of April 20, 2015, Defendant continued to advertise and sell
issues of the HorrorHound magazine that included infringing content, including Issue 50 and
others, on Defendants website, well after Defendant was formally notified of Plaintiffs
complaint.1
29.
The VIDEO INVASIONTM articles required a significant amount of Plaintiffs
time, which included writing the text of the articles, finding, selecting, and arranging pictures of
VHS covers to correspond to the VHS tapes Plaintiff discussed in his articles, and otherwise
creating a distinctive layout for the series.
See www.horrorhound.com/store/index, last visited on April 20, 2015.
30.
Prior to the first VIDEO INVASIONTM article, Plaintiff conceptualized the layout
and design of the series. Plaintiff believed the series should be reminiscent of a movie store with
a museum-like quality. Plaintiff provided Defendant with a hand-drawn depiction of the layout
of the article and otherwise instructed Defendant in detail on Plaintiffs vision for the design of
the article.
31.
Similarly, with subsequent VIDEO INVASIONTM articles, Plaintiff instructed
Defendant as to specific details pertaining to every aspect of the articles. Plaintiff spent a
significant amount of time discussing these VIDEO INVASIONTM articles with Defendant,
wherein he detailed with specificity the layout and design of the VIDEO INVASION TM articles,
including, but not limited to, the selection and arrangement of the VHS cover art and the
selection and arrangement of any movie posters and promotions. In addition, Plaintiff spent a
significant amount of time answering Defendants questions regarding aspects of the layout and
design. On information and belief, Defendant inputted Plaintiffs layout and design into a
computer software program.
32.
In addition to authoring the layout and design of the VIDEO INVASIONTM
articles, Plaintiff twice updated the header for the VIDEO INVASIONTM articles, with the
second iteration of the header appearing first in Issue 20, and the third iteration appearing first in
Issue 34.
With each header, Plaintiff communicated to Defendant the exact changes
necessary to realize his vision, and those changes were implemented under Plaintiffs authority.
Moreover, in addition to Plaintiffs extensive communication, Plaintiff provided a drawing of the
main component of the second iteration of the header to Defendant.
33.
Plaintiff created the layout and design of the VIDEO INVASIONTM series by
dictating with specificity the design elements to Defendant, including, but not limited to: (i) a
band of black roughly one inch wide, running horizontally from left to right across the top of the
left page and continuing slightly across the fold onto the opposite page where the black band is
composed of images of reels of VHS tapes laid end to end. The band features three additional
text and/or design elements: first, the text THE VIDEO INVASION REMEMBERING THE
VHS BOOM!, second, a colorful central featuring text consisting of the stylized Volume Title
and design, and third, text comprised of the Volume Number, Volume Title, and Plaintiff Matt
Moores name; (ii) two columns of text on both pages bifurcated by a central colorful video
cover; (iii) a band of colorful VHS covers creating a band approximately two inches wide across
all or substantially all of the bottom of both pages of the articles, and across the top of the second
page of the article; and (iv) the use of consistent font in white on black for the Series and
Volume names displayed in the black band.
34.
Plaintiff thus authored the layout and design of each of the VIDEO INVASIONTM
articles, as Plaintiff communicated the exact design to Defendant and the work was fixed under
the authority of Plaintiff.
35.
Defendants involvement with the VIDEO INVASIONTM series amounted to
editing of Plaintiffs text in the articles and transcribing Plaintiffs exact instructions regarding
the layout and design of the series into a computer software program.
36.
In each VIDEO INVASIONTM article that Plaintiff penned, Plaintiff authored the
text, layout, and design of each VIDEO INVASIONTM article, Plaintiff is the sole owner of all
intellectual property rights in the same.
37.
As the sole owner, Plaintiff retains all rights to create works that derive from the
VIDEO INVASIONTM articles.
38.
Plaintiff never signed a work for hire agreement, was never Defendants
employee, nor did he assign his intellectual property rights in the articles, the VIDEO
INVASIONTM Mark, or his name to Defendant at any time. In addition, any implied license that
Defendant had to publish Plaintiffs copyrighted work was terminated when Plaintiff ended his
relationship with Defendant.
39.
Plaintiff currently has a federal copyright application pending for the VIDEO
INVASIONTM series of articles covering Issues 34 through 39. Per the United States Copyright
Offices rules, Plaintiff properly filed a paper application with the Copyright Office and paid the
required fees. See Exhibit 2. Plaintiff notes that a complaint alleging that the copyright holder
properly applied for registration with the Copyright Office is sufficient to satisfy the
precondition to an infringement action. Phoenix Renovation Corp. v. Rodriguez, 403 F. Supp.
2d 510, 515 (E.D. Va. 2005).
40.
Defendant violated Plaintiffs copyright when it created the infringing VHS
Invasion series. Defendants VHS Invasion articles utilized the same look and feel as Plaintiffs
VIDEO INVASIONTM series and were derived from Plaintiffs VIDEO INVASIONTM series.
41.
In the alternative, even if Defendants contributions to each VIDEO
INVASIONTM article go beyond editing and transcribing, Plaintiff is, at the very least, a joint
author in each VIDEO INVASIONTM article that he penned.
42.
For each of the VIDEO INVASIONTM articles that Plaintiff penned, Plaintiff
authored the independently-copyrightable text. Plaintiff also provided independentlycopyrightable and/or substantial contributions to the layout and design of each VIDEO
INVASIONTM article, including, but not limited to, contributions to the article headers, the
selection and arrangement of VHS cover art, the selection and arrangement of poster art, movie
stills and other aspects of the design.
43.
Furthermore, Plaintiff was responsible for giving final approval of the VIDEO
INVASIONTM articles.
44.
With each published VIDEO INVASIONTM article, Plaintiff and Defendant
intended to create a unitary whole work comprising all of the components put forth by the
parties.
45.
As a joint author, Plaintiff is entitled to his pro rata share of the profits in both the
VIDEO INVASIONTM series and the derivative VHS Invasion articles, a right that Defendant
has thus far denied Plaintiff.
46.
Additionally, Plaintiff is the owner of the mark VIDEO INVASIONTM, which
Plaintiff uses to identify his series of articles. As a result of Plaintiffs continuous use of the
VIDEO INVASIONTM Mark to identify Plaintiffs series, Plaintiff owns common law rights to
the VIDEO INVASIONTM Mark.
47.
Defendant infringed Plaintiffs trademark rights in the VIDEO INVASIONTM
mark when it continued to use Plaintiffs trademark and then began using the confusingly similar
VHS INVASION trademark.
48.
Defendants use of the mark VHS INVASION to identify its new articles was
intended to cause and has caused actual confusion in the marketplace. For example, on March
13, 2014, a fan of Plaintiffs VIDEO INVASIONTM series posted in a forum: Video Invasion is
back in HorrorHound this month? Nice. This statement confused Defendants VHS Invasion
article, published in the March, 2014 issue of Defendants magazine, with Plaintiffs VIDEO
INVASIONTM series.
10
49.
In addition, Defendants listing of the VIDEO INVASIONTM articles as VHS
Invasion articles in the HorrorHound Magazine Index published in Issue 50 significantly

enhances the likelihood of confusion between Plaintiffs VIDEO INVASIONTM series and VHS
Invasion, as Defendant has willfully led consumers to believe that all of Plaintiffs VIDEO
INVASIONTM articles are actually VHS Invasion articles.
50.
Defendants use of the mark VHS Invasion infringes Plaintiffs rights in the
VIDEO INVASIONTM mark as it causes, and was intended to cause, confusion in the
marketplace as to the source of the articles.
51.
Plaintiff filed an application to federally register the VIDEO INVASIONTM mark
on December 12, 2014 (U.S. Serial Number 86480154), a copy of the United States Patent and
Trademark Office filing receipt for this mark is shown as Exhibit 3.
52.
Plaintiff has also registered the mark VIDEO INVASIONTM with the
Commonwealth of Virginia, Virginia Trademark Registration Number 11110. See Exhibit 4.

COUNT I
UNFAIR COMPETITION UNDER THE LANHAM ACT
(As to VIDEO INVASIONTM Mark)
53.
Plaintiff repeats and re-alleges each of the allegations above as if fully set forth
54.
Defendants unauthorized use of Plaintiffs VIDEO INVASIONTM is likely to and
herein.
has caused actual confusion among the consuming public as to the origin, sponsorship, or
approval of Defendants goods.
55.
As a result of Defendants unauthorized use of Plaintiffs VIDEO INVASIONTM
Mark in connection with articles in the field of collecting horror movies, the consuming public
has believed, and is likely to continue to believe, that Defendants articles have been created or
11
approved by Plaintiff. Such use falsely represents Defendant as being legitimately affiliated,
connected, or associated with or authorized by Plaintiff. Defendants use further places
Plaintiffs valuable and hard-earned reputation and goodwill in the hands of Defendant in
violation of 15 U.S.C. 1125(a).
56.
Furthermore, Defendants unauthorized use of the VHS Invasion mark, a
confusingly similar imitation of Plaintiffs VIDEO INVASIONTM Mark, is likely to cause

confusion, to cause mistake, or to deceive the consuming public as to the origin, sponsorship, or
approval of Defendants goods, and in fact has caused confusion, mistake, and has deceived the
consuming public as to the origin, sponsorship, or approval of Defendants goods.
57.
As a result of Defendants unauthorized use of a confusingly similar imitation of
Plaintiffs Mark in connection with articles in the field of collecting horror movies, the
consuming public has believed, and is likely to continue to believe, that Defendants articles
have been created or approved by Plaintiff. Such use falsely represents Defendant as being
legitimately affiliated, connected, or associated with or authorized by Plaintiff. Defendants use
further places Plaintiffs valuable and hard-earned reputation and goodwill in the hands of
Defendant in violation of 15 U.S.C. 1125(a).
58.
On information and belief, in using Plaintiffs VIDEO INVASIONTM Mark,
Defendant knowingly and intentionally caused actual confusion among the relevant consuming
public as to the source of Defendants VHS Invasion articles.
59.
Defendants conduct is causing immediate and irreparable injury to Plaintiff, his
goodwill and reputation, and will continue to damage Plaintiff and deceive the public unless
enjoined by this Court pursuant to 15 U.S.C. 1116.
12
60.
In addition to injunctive relief, Plaintiff is entitled to recover his actual damages,
costs, reasonable attorneys fees, and Defendants profits under 15 U.S.C. 1117 in an amount
to be determined.
COUNT II
STATE TRADEMARK INFRINGEMENT
(As to VIDEO INVASIONTM Mark)
61.
62.
Defendants unauthorized use of Plaintiffs VIDEO INVASIONTM Mark is likely
herein.
to cause, and in fact has caused, consumer confusion, mistake, or deception as to the source or
origin of Defendants goods in violation of Virginia Code Ann. 59.1-92.12.
63.
Furthermore, Defendants unauthorized use of the VHS INVASION Mark, a
confusingly similar imitation of Plaintiffs VIDEO INVASIONTM Mark, is likely to cause, and in
fact has caused, consumer confusion, mistake, or deception as to the source or origin of
Defendants goods in violation of Virginia Code Ann. 59.1-92.12.
64.
In using Plaintiffs Mark, Defendant knowingly and intentionally caused actual
confusion among the relevant consuming public as to the source of Defendants VHS Invasion
articles.
65.
As a result of Defendants intentional actions, Plaintiff is entitled to recover his
actual damages, costs, reasonable attorneys fees, and Defendants profits under Virginia Code
Ann. 59.1-92.12 in an amount to be determined.
13
COUNT III
COMMON LAW UNFAIR COMPETITION/MISAPPROPRIATION
(As to the VIDEO INVASIONTM Mark)
66.
67.
Defendants acts constitute common law unfair competition and have created and
herein.
will continue to create a likelihood of confusion by using a confusingly similar imitation of

Plaintiffs VIDEO INVASIONTM Mark.
68.
On information and belief, Defendant acted with full knowledge of Plaintiffs use
of, and common law rights to, the VIDEO INVASIONTM Mark and acted without regard to the
likelihood of confusion of the public created by Defendants activities.
69.
Such confusion has actually occurred, and is likely to continue to occur, due to
Defendants actions.
70.
On information and belief, Defendants actions demonstrate an intentional and
willful intent to trade on the goodwill and reputation associated with Plaintiffs Mark to the great
and irreparable injury of Plaintiff.
71.
As a result of Defendants acts, Plaintiff has been damaged in an amount not as
yet determined or ascertainable. At a minimum, however, Plaintiff is entitled to injunctive relief,

to an accounting of Defendants profits, to damages, and to costs.
COUNT IV
FEDERAL COPYRIGHT INFRINGEMENT
72.
herein.
14
73.
Plaintiff is, and all relevant times has been, the copyright owner of exclusive
rights with respect to every VIDEO INVASIONTM article that Plaintiff penned and all artistic
elements incorporated by Plaintiff into each article.
74.
As copyright owner of exclusive rights, Plaintiff is solely entitled to reproduce,
distribute, prepare derivative works, and/or display Plaintiffs copyrighted work.

75.
Defendants publication of each article entitled VHS Invasion infringed
Plaintiffs exclusive rights by preparing a derivative work without Plaintiffs consent or

agreement.
76.
Although Defendant could have adopted any one of thousands of article layouts
and elements, Defendants VHS Invasion series copied a substantial part of Plaintiffs work by
including, but not limited to, the following elements employed by Plaintiff: (i) a band of black
roughly one inch wide and a light gray horizontal line near the bottom of such band, in each case,
running horizontally from left to right across the top of the left page; (ii) layout of text on either
side of the series name; (iii) a band of colorful VHS covers creating a band approximately two
inches wide across all or substantially all of the bottom of both pages of the articles, and across
the top of the second page of the article; and (iv) the use of consistent font in white on black for
the Series and Volume names displayed in the black band.
77.
On information and belief, Defendants acts were willful and intentional and with
disregard of and indifference to the rights of Plaintiff.

78.
Defendants conduct is causing immediate and irreparable injury to Plaintiff, his
goodwill and reputation, and will continue to damage Plaintiff and deceive the public unless
enjoined by this Court pursuant 17 U.S.C. 502.
15
79.
As a result of Defendants acts, Plaintiff has been damaged in an amount not as
yet determined or ascertainable. At a minimum, however, Plaintiff is entitled to injunctive relief,

to an accounting of Defendants profits, to damages, and to costs, including reasonable attorneys
fees.
COUNT V
DECLARATORY JUDGMENT
(In the Alternative)
80.
81.
Each of the facts set forth in Counts V, VI, and VII are pled in the alternative.
82.
If Plaintiff is not the sole owner of each VIDEO INVASIONTM article that he
herein.
penned, then, in the alternative, Plaintiff is, at the very least, a joint author in the same.
83.
Plaintiff
owns
the
independently-copyrightable
text
for
each
VIDEO
INVASIONTM article that he penned.

84.
Plaintiff made independently-copyrightable and/or substantial contributions to the
layout and design of each VIDEO INVASIONTM article and to other components of the unitary
work.
85.
Plaintiff was responsible for approving the final version of each VIDEO
INVASIONTM article.
86.
Defendant also contributed to each VIDEO INVASIONTM article, through, on
information and belief, the use of a computer software program.

87.
With each VIDEO INVASIONTM article, Plaintiff and Defendant fully expected
and intended for their contributions to be merged into inseparable or interdependent parts of a
single unitary whole comprising the finalized version of each VIDEO INVASIONTM article.
16
88.
Defendant, however, now claims that its contributions rise to the level of entitling
it to sole ownership in the copyright in each VIDEO INVASIONTM article that Plaintiff penned.
89.
Therefore, an actual case or controversy exists sufficient for this Court to declare
the rights and remedies of the parties in that there is a dispute between the parties concerning the
extent of rights each party enjoys in each of the VIDEO INVASIONTM articles.
90.
Pursuant to 28 U.S.C. 2201 Plaintiff seeks a judgment declaring that Plaintiff is
an author and owner of the copyright in each VIDEO INVASIONTM article that he penned.
COUNT VI
ACCOUNTING
91.
92.
Plaintiff, as a joint owner in the copyright, is entitled to his pro rata share of the
herein.
profits that Defendant enjoyed from each VIDEO INVASIONTM article that he penned and/or
the VIDEO INVASION TM series as a whole.
93.
Plaintiff is further entitled to his pro rata share of the profits that Defendant
enjoyed from the VHS Invasion articles, which were derived from the VIDEO INVASION TM
series.
94.
By commercially exploiting both the VIDEO INVASIONTM series and the VHS
Invasion articles without accounting to Plaintiff for profits, Defendant wrongfully deprived
Plaintiff of his rightful share of income therefrom.
95.
Defendants actions have damaged Plaintiff in an amount not as yet determined or
ascertainable.
17
96.
Plaintiff is therefore entitled to an accounting of Defendants profits with respect
to each VIDEO INVASIONTM article that Plaintiff penned and/or the VIDEO INVASIONTM
series as a whole, as well as to the VHS Invasion articles.
COUNT VII
CONSTRUCTIVE TRUST
97.
98.
By virtue of the foregoing, in equity any interest in each VIDEO INVASIONTM
herein.
article that Plaintiff penned and/or the VIDEO INVASIONTM series, as well as the VHS Invasion
articles, and profits received by Defendant from their commercial exploitation are the property of
Plaintiff and Defendant in equal shares.
99.
Defendant has wrongfully deprived Plaintiff of his share of the profits that
Defendant enjoyed from the commercial exploitation of each VIDEO INVASION TM article that
he penned and/or the VIDEO INVASIONTM series as a whole, as well as the VHS Invasion
articles.
100.
By virtue of Defendants acts, Defendant holds the profits derived from the
exploitation of both the VIDEO INVASIONTM series and the VHS Invasion articles as
constructive trustee for the benefit of Plaintiff and Defendant.
101.
Plaintiff is entitled to immediate possession of his pro rata share of the profits
held by Defendant as constructive trustee.

COUNT VIII
STATUTORY RIGHT OF PUBLICITY
102.
herein.
18
103.
Plaintiff has the sole and exclusive right of publicity with regard to the use of his
name in Defendants magazine.

104.
After Plaintiff decided to and did discontinue his working relationship with
Defendant, Defendant published Plaintiffs name in Defendants magazine for the purposes of
trade on at least six different occasions.
105.
On information and belief, Defendants unauthorized and unlawful use of
Plaintiffs name was willful, intentional, and knowing.

106.
Defendants conduct has caused and is causing immediate and irreparable injury
to Plaintiff, his goodwill and reputation, and will continue to damage Plaintiff and deceive the
public unless enjoined by this Court pursuant to Virginia Code Ann. 8.01-40.
107.
Furthermore, as a result of Defendants knowing use of Plaintiffs name, Plaintiff
is entitled to recover actual and exemplary damages pursuant to Virginia Code 8.01-40.
COUNT IX
COMMON LAW QUANTUM MERUIT
108.
109.
From July, 2008 through January, 2013, Plaintiff authored dozens of in-depth
herein.
articles that were published in Defendants magazine, including, but not limited to, twenty-six
(26) articles for the VIDEO INVASIONTM series.
110.
On information and belief, Defendant sought out a wide variety of authors,
including Plaintiff, to expand the magazines appeal by including a variety of content in each
issue of the HorrorHound magazine. Plaintiffs VIDEO INVASIONTM series fulfilled this goal
by appealing to both VHS fans and horror fans.
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111.
Defendant repeatedly failed to fairly compensate Plaintiff for his work. Although
Plaintiff was spending several hours creating, writing, designing, and organizing each article,
Defendant in exchange paid Plaintiff small and irregular sums. Plaintiff often had to demand and
then repeatedly follow up with Defendant before receiving these payments.
112.
On several occasions, Plaintiff requested additional information regarding how
Defendant calculated Plaintiffs compensation. In response to one such inquiry, Defendant

informed Plaintiff that he was paid on a per page basis. The payment history belies this
purported structure, however, as Plaintiff was at one time paid $40.00 for a six page article and at
another time paid $100.00 for a two page article.
113.
When Plaintiff again requested more detailed information regarding payment, he
was assured by Defendant that Plaintiffs compensation was the same as the others. Additional
requests for information by Plaintiff were met by Defendant repeatedly dodging the question and
refusing to provide any substantive information regarding compensation.
114.
On information and belief, Defendants actions demonstrate an intentional and
willful intent to benefit from Plaintiffs labor without appropriately compensating Plaintiff
therefor.
115.
In addition, Plaintiff purchased various items, including VHS tapes, on behalf of
Defendant. Plaintiff fronted the costs for these items on behalf of Defendant after Defendant
promised to reimburse Plaintiff for such costs.
116.
Defendant failed to recompense Plaintiff the significant costs Plaintiff incurred on
behalf of Defendant. Defendant was thus unjustly enriched as a result of Defendants actions.
117.
As a result of Defendants acts, Plaintiff is entitled to recover his actual damages,
costs and reasonable attorneys fees in an amount to be determined.
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PRAYER FOR RELIEF

1. WHEREFORE, Plaintiff prays that: Defendant and all of its agents, officers, employees,
representatives, successors, assigns, attorneys, and all other persons acting for, with, by,
through, or under authority from Defendant, or in concert or participation with
Defendant, and each of them, be enjoined permanently, from:
a. Using the VHS INVASION and the VIDEO INVASIONTM trademarks, or any
other colorable imitation or confusingly similar mark on or in connection with
Defendants goods and services ;
b. Using any trademark, service mark, name, logo, design or source designation of
any kind on or in connection with Defendants goods or services that is a copy,
reproduction, colorable imitation, or simulation of, or confusingly similar to the
VIDEO INVASIONTM trademark;
c. Using any trademark, service mark, name, logo, design or source designation of
any kind on or in connection with Defendants goods or services that is likely to
cause confusion, mistake, deception, or public misunderstanding that such goods
or services are produced or provided by Plaintiff, is sponsored or authorized by
Plaintiff, or is in any way connected or related to Plaintiffs;
2. Defendant be ordered to recall all products that infringe Plaintiffs VIDEO INVASIONTM
trademark which have been shipped by Defendant or under its authority, to any customer
including, but not limited to, any wholesaler, distributor, retailer, or marketer;
3. Defendant be ordered to deliver up for impoundment and destruction all magazines and
merchandise, including but not limited to shirts, hats, sweaters, ball caps, etc., in the
21
possession, custody, or under the control of Defendant that is found to adopt, to infringe,
or to dilute Plaintiffs VIDEO INVASIONTM trademark or his copyright;
4. Defendant be compelled to account to Plaintiff for any and all profits derived from
Defendant from the sale or distribution of infringing goods as described in this
Complaint, including prejudgment interest thereon;
5. Plaintiff be awarded all damages, expressly including unreimbursed expenses paid by
Plaintiff and unpaid wages, caused by the acts forming the basis of this Complaint,
together with prejudgment interest thereon;
6. Based on Defendants knowing and intentional use of Plaintiffs Mark and a colorable
imitation of Plaintiffs Mark, the damages award be trebled and the award of Defendants
profits be enhanced as provided for by 15 U.S.C. 1117 and Virginia Code Ann. 59.192.12;
7. Defendant be required to pay to Plaintiff the cost of this action and Plaintiffs reasonable
attorneys fees pursuant to 15 U.S.C. 1117 and Virginia Code Ann. 59.1-92.12;
8. Plaintiff be awarded Plaintiffs actual damages and Defendants profits with respect to
the VHS Invasion articles pursuant to 17 U.S.C. 504 and Plaintiffs reasonable
attorneys fees and costs pursuant to 17 U.S.C. 505;
9. If the Court finds that each VIDEO INVASIONTM article is a joint work, that the Court
declare that each VIDEO INVASIONTM series comprises joint works of authorship for
which Plaintiff is an author;
10. In the event of a declaratory judgment, that Plaintiff be granted an accounting of profits
from Defendant with respect to each VIDEO INVASIONTM article that he penned and
22
the VIDEO INVASIONTM series as a whole, as well as the VHS Invasion articles and an
award of attorneys fees;
11. In the event of a declaratory judgment, that the Court impress upon Defendant a
constructive trust for all profits and other benefits received by Defendant in the
exploitation of each VIDEO INVASIONTM article that he penned and the VIDEO
INVASIONTM series as a whole, as well as the VHS Invasion articles and order
Defendant to pay in damages the amount due to Plaintiff under that constructive trust;
and
12. Such other and further relief as the Court may deem just.
JURY TRIAL DEMAND
Plaintiff respectfully demands a trial by jury on all claims and issues so triable.
DATED: July 31, 2015
_______/s/___________
Pamela C. Gavin, Esq.
VSB No. 37328
Gavin Law Offices, PLC
2229 Pump Road
Richmond, Virginia 23233
Telephone: 804-784-4427
Facsimile: 804-482-2964
pgavin@gavinlawoffices.com
Attorney for Ian Mattlock Moore
23
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 31st day of July, 2015, I electronically filed the
foregoing Plaintiffs First Amended Original Complaint using CM/ECF. I further certify that the
foregoing document is being served this day on the following through the CM/ECF system:
Jon A. Shiffrin, Esq., VSB No. 67542

Trina A. Long, Esq., VSB. No. 45586
8201 Greensboro Drive, Suite 300
McLean, Virginia 22102
Telephone: (703) 288-5248
Facsimile: (703) 288-4003
jon@schiffrinlaw.com
trina@schiffrinlaw.com
_______/s/_________
Pamela C. Gavin
VSB No. 37328
Gavin Law Offices, PLC
2229 Pump Road
Richmond, Virginia 23233
Telephone: 804-784-4427
Facsimile: 804-482-2964
pgavin@gavinlawoffices.com
Attorney for Ian Mattlock Moore
24

Moore v. Horrorhound - Second Amended Complaint PDF

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Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 1 of 24 PageID# 321

IN THE UNITED STATES DISTRICT COURT

JURY TRIAL DEMANDED

PLAINTIFFS SECOND AMENDED ORIGINAL COMPLAINT

Plaintiff, Ian Mattlock Moore is a citizen and resident of Maidens, Virginia. He is

a well-known expert in the field of horror films.

Upon information and belief, Defendant HorrorHound Ltd, LLC, is an Ohio

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 2 of 24 PageID# 322

JURISDICTION AND VENUE

Venue is proper pursuant to 28 U.S.C. 1391(b)(2) because a substantial part of

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 3 of 24 PageID# 323

Fans of HorrorHound magazine have especially loved the VIDEO INVASIONTM

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 4 of 24 PageID# 324

On information and belief, sales of Defendants HorrorHound magazine

In addition, Plaintiff often purchased goods and services on behalf of Defendant,

HorrorHound magazines popularity is evidenced by the more than thirteen

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 5 of 24 PageID# 325

Despite Plaintiffs decision to discontinue writing for Defendant, Defendant

the look and feel of Plaintiffs VIDEO INVASIONTM series.

Defendant published another VHS Invasion article in Issue 49.

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 6 of 24 PageID# 326

In Issue 50, Defendant published a HorrorHound Magazine Index. This index

Defendant again published a VHS Invasion article in Issue 50.

Each of the VHS Invasion articles constituted derivative works of Plaintiffs

copyright in the VIDEO INVASIONTM articles.

Throughout 2013 and 2014, on information and belief, Defendant continued to

Furthermore, as of April 20, 2015, Defendant continued to advertise and sell

The VIDEO INVASIONTM articles required a significant amount of Plaintiffs

See www.horrorhound.com/store/index, last visited on April 20, 2015.

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 7 of 24 PageID# 327

Similarly, with subsequent VIDEO INVASIONTM articles, Plaintiff instructed

In addition to authoring the layout and design of the VIDEO INVASIONTM

With each header, Plaintiff communicated to Defendant the exact changes

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 8 of 24 PageID# 328

Defendants involvement with the VIDEO INVASIONTM series amounted to

VIDEO INVASIONTM articles.

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 9 of 24 PageID# 329

Defendant violated Plaintiffs copyright when it created the infringing VHS

In the alternative, even if Defendants contributions to each VIDEO

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 10 of 24 PageID# 330

With each published VIDEO INVASIONTM article, Plaintiff and Defendant

Additionally, Plaintiff is the owner of the mark VIDEO INVASIONTM, which

Defendant infringed Plaintiffs trademark rights in the VIDEO INVASIONTM

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 11 of 24 PageID# 331

In addition, Defendants listing of the VIDEO INVASIONTM articles as VHS

Invasion articles in the HorrorHound Magazine Index published in Issue 50 significantly

Plaintiff filed an application to federally register the VIDEO INVASIONTM mark

Commonwealth of Virginia, Virginia Trademark Registration Number 11110. See Exhibit 4.

Defendants unauthorized use of Plaintiffs VIDEO INVASIONTM is likely to and

As a result of Defendants unauthorized use of Plaintiffs VIDEO INVASIONTM

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 12 of 24 PageID# 332

Furthermore, Defendants unauthorized use of the VHS Invasion mark, a

confusingly similar imitation of Plaintiffs VIDEO INVASIONTM Mark, is likely to cause

As a result of Defendants unauthorized use of a confusingly similar imitation of

On information and belief, in using Plaintiffs VIDEO INVASIONTM Mark,

Defendants conduct is causing immediate and irreparable injury to Plaintiff, his

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 Page 13 of 24 PageID# 333

In addition to injunctive relief, Plaintiff is entitled to recover his actual damages,

Defendants unauthorized use of Plaintiffs VIDEO INVASIONTM Mark is likely

Furthermore, Defendants unauthorized use of the VHS INVASION Mark, a

In using Plaintiffs Mark, Defendant knowingly and intentionally caused actual

As a result of Defendants intentional actions, Plaintiff is entitled to recover his