Case 4:11-cv-40211-FDS Document 1

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DAVID OPPENHEIMER D/B/A PERFORMANCE IMPRESSIONS, Plaintiff, Civil Action No. vs. INYOURSPEAKERS MEDIA, LLC Defendant.

COMPLAINT This Action is brought under the Copyright Laws of the United States as amended, 17 U.S.C. 101 et seq., to redress the infringement of one of Plaintiffs copyrighted photographs, and under 17 U.S.C 1201-1203, to redress the removal of Plaintiffs copyright management information from said photograph. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. 1338(a) and proper venue exists under 28 U.S.C. 1400(a). 1. Plaintiff, DAVID OPPENHEIMER, who does business under the name

Performance Impressions, is a professional photographer residing in Asheville, North Carolina. 2. Defendant, INYOURSPEAKERS MEDIA, LLC (hereinafter, Inyourspeakers), is

a limited liability company duly organized under the laws of the State of Delaware. Inyourspeakers regularly conducts business at 331 Littleton Road, Harvard, Worcester County, Commonwealth of Massachusetts.

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3.

On or about February 11, 2008, Plaintiff photographed a musical group known as

Bassnectar while it was performing at the Orange Peel in Asheville, North Carolina. A photograph of Bassnectar entitled, Bassnectar Photo at the Orange Peel, Asheville 2008 (the Photograph) was published on Plaintiffs website, www.performanceimpressions.com, with the following copyright management information: 2008, David Oppenheimer, Performance Impressions. A copy of the Photograph is attached hereto as Exhibit A and is incorporated herein by reference. 4. Plaintiff is the author of the Photograph and has at all times owned, and continues to

own all of the rights to the Photograph including the copyright hereto. The Photograph was registered with the Copyright Registration Office at the Library of Congress and was given Copyright Registration Number VA 1-701-181, effective January 30, 2010. See the Certificate of Registration, a copy of which is attached hereto as Exhibit B, which is incorporated herein by reference.

Count I 5. Defendant copied the Photograph and used and displayed the Photograph without

Plaintiffs permission or authority, on its website, www.inyourspeakers.com. A copy of the Photograph as it appeared on Defendants website is attached hereto as Exhibit C and is incorporated herein by reference. 6. Defendants copying, use and display of the Photograph on Defendants website

without Plaintiffs permission or authority is a violation of Plaintiffs exclusive rights under the Copyright Act, 17 U.S.C. 101 et seq., and as a result, Plaintiff has been damaged and he is entitled to his damages.

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Count II 7. Plaintiff realleges Paragraphs 1 through 6 hereof as if said paragraphs had been

repeated herein in their entirety. 8. Without Plaintiffs permission or authority, Defendant intentionally removed the

copyright management information from the Photograph and distributed the Photograph on its website, www.inyourspeakers.com, without Plaintiffs copyright information, in violation of Title 17 United States Code 1202. A copy of the Photograph as it appeared on Defendants website is attached hereto as Exhibit C and is incorporated herein by reference. 9. As a result of Defendants conduct, Plaintiffs rights have been violated for which

Plaintiff is entitled to his damages. WHEREFORE, Plaintiff, DAVID OPPENHEIMER, demands judgment against the Defendant, INYOURSPEAKERS MEDIA, LLC, as follows: a) That Defendant be required to deliver up for impoundment the original and all copies of Plaintiffs photograph in all forms whatsoever, which are in Defendants possession or under its control, including all negatives, positives, transparencies, prints, video tapes, film, and other copies in all versions and media including printed copies, and copies in magnetic, electronic and digital files, as well as all copies on Defendants website, www.inyourspeakers.com, and that Defendant be permanently enjoined from using the Photograph in any way whatsoever. b) That Defendant be required to pay the Plaintiff such actual damages as Plaintiff has sustained in consequence of Defendants infringement of Plaintiffs copyright and to account for all gains, profits and advantages derived by Defendant from its use and infringement of Plaintiffs Photograph;

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c) In lieu of Plaintiffs actual damages and Defendants profits, that Defendant be required to pay to Plaintiff such Statutory Damages as to the Court shall appear just within the provisions of the Copyright Act in a sum not less than $750 nor more than $30,000, or if the Court finds that the infringement was committed willfully, such statutory damages as to the Court shall appear just within the provisions of the Copyright Act in a sum up to and including $150,000;

d) That Defendant be required to pay Plaintiff such actual damages as Plaintiff has sustained as a result of Defendants violation of Title 17 United States Code 1202, and that Defendant account to Plaintiff for all gains, profits and advantages derived by Defendant from such violation;

e) In lieu of Plaintiffs actual damages and Defendants profits for violation of Title 17 United States Code 1201 through 1203, if the court finds that Defendant removed Plaintiffs Copyright Management Information in violation of said statutes, that Defendant be required to pay to Plaintiff such Statutory Damages as to the Court shall appear just within the provisions of Title 17 United States Code 1203(c)(3)(B) in a sum not less than $2,500 or more than $25,000;

f) That Defendant pay Plaintiff his costs together with reasonable attorneys fees in an amount to be determined by this Court;

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g) That Plaintiff have such other and further relief as is deemed to be just and proper.

PLAINTIFF CLAIMS TRIAL BY JURY DAVID OPPENHEIMER By his attorney, /s Andrew D. Epstein __________________________ Andrew D. Epstein, Esquire BBO #155-140 Barker, Epstein & Loscocco Boston, Massachusetts 02110 (617) 482-4900 Fax: (617) 426-5251 Photolaw@aol.com Dated: November 3, 2011