Berman Complaint
Berman Complaint
Berman Complaint
)
Sayre Berman, )
)
Plaintiff, )
) Case No:
v. )
) COMPLAINT
Auralex Acoustics, Inc., )
)
Defendant. )
)
Plaintiff Sayre Berman (“Plaintiff”), by and through its undersigned counsel, for its
Complaint against defendant Auralex Acoustics, Inc. (“Defendant”) states and alleges as
follows:
INTRODUCTION
1. This action seeks to recover damages for copyright infringement and the
2. Plaintiff herein creates photographic images and owns the rights to these images
which Plaintiff licenses for various uses including online and print publications.
as “Auralex Acoustics” (together the Instagram and Facebook account as referred to as the
“Accounts”).
stored, and/or displayed Plaintiff's Photograph on the Website and Accounts and engaged in
this misconduct knowingly and in violation of the United States copyright laws.
PARTIES
and maintains a principal place of business 206 Riverstone Court, Nashville, Tennessee.
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who is a citizen of the State of Indiana with a principal place of business at 9955 Westpoint
Drive, Indianapolis in Marion County, Indiana and is liable and responsible to Plaintiff based
7. This Court has subject matter jurisdiction over the federal copyright
8. This Court has personal jurisdiction over Auralex Acoustics, Inc. because it
maintains its principal place of business in Indiana.
does business in this Judicial District and/or because a substantial part of the events or
10. Plaintiff is a professional photographer by trade who is the legal and rightful
11. Plaintiff has invested significant time and money in building Plaintiff's
photograph portfolio.
12. Plaintiff has obtained active and valid copyright registrations from the United
States Copyright Office (the “USCO”) which cover many of Plaintiff's photographs while many
13. Plaintiff's photographs are original, creative works in which Plaintiff's own
15. The Website is monetized in that it offers to sells merchandise to the public and,
16. Defendant utilizes the Accounts to promote Defendant’s business and to drive
traffic to its Website and store and, on information and belief, Defendant profits from these
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activities.
17. On March 25, 2019 Plaintiff Sayre Berman authored a photograph of Ray Luzier
18. The Photograph was registered by USCO on March 25, 2019 under Registration
No. VA 2-145-705.
19. On July 13, 2021, Plaintiff observed the Photograph on the Website. A copy of
2.
20. The Photograph was displayed at URL: https://auralex.com/famous-users/ray-
luzier/.
pbjm8zp7wl/images/stencil/832x750/uploaded_images/ray-luzier-headshot-1-01.png.
22. On July 20, 2021, Plaintiff observed the Photograph on Defendant’s Instagram
account in a post dated November 24, 2020. A copy of screengrab of Instagram account
23. On July 20, 2021, Plaintiff observed the Photograph on Defendant’s Facebook
account in a post dated October 21, 2019. A copy of screengrab of Instagram account including
24. On July 20, 2021, Plaintiff observed the Photograph on Defendant’s Facebook
account in a post dated February 21, 2020. A copy of screengrab of Instagram account including
25. On July 20, 2021, Plaintiff observed the Photograph on Defendant’s Facebook
account in a post dated November 24, 2020. A copy of screengrab of Instagram account
selected, copied, stored and/or displayed Plaintiff copyright protected Photograph as is set forth
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27. The Photograph was copied, stored and displayed without license or permission,
28. The Infringements each include a URL (“Uniform Resource Locator”) for a
fixed tangible medium of expression that was sufficiently permanent or stable to permit it to be
communicated for a period of more than transitory duration and therefore constitutes a specific
infringement.
29. The Infringements are exact copy of the entirety of Plaintiff's original image that
were directly copied and stored by Defendant on the Website and the Accounts.
30. On information and belief, Defendant takes an active and pervasive role in the
content posted on its Website, including, but not limited to copying, posting, selecting,
commenting on and/or displaying images including but not limited to Plaintiff's Photograph.
31. On information and belief, Defendant takes an active and pervasive role in the
content posted on its Accounts, including, but not limited to copying, posting, selecting,
commenting on and/or displaying images including but not limited to Plaintiff's Photograph.
32. On information and belief, the Photograph was willfully and volitionally posted
33. On information and belief, the Photograph was willfully and volitionally posted
34. On information and belief, Defendant is not registered with the United States
35. On information and belief, the Infringement were not posted at the direction of
37. On information and belief, the Photograph are readily identifiable as copyright
protected as they contained copyright management information on the image, thereby making
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38. On information and belief, Defendant has the legal right and ability to control
and limit the infringing activities on its Website and exercised and/or had the right and ability
39. On information and belief, Defendant has the legal right and ability to control
and limit the infringing activities on its Accounts and exercised and/or had the right and ability
40. On information and belief, Defendant monitors the content on its Website.
41. On information and belief, Defendant monitors the content on its Accounts.
42. On information and belief, Defendant has received a financial benefit directly
43. On information and belief, the Infringements increased traffic to the Website
44. On information and belief, a large number of people have viewed the unlawful
45. On information and belief, a large number of people have viewed the unlawful
46. On information and belief, Defendant at all times had the ability to stop the
FIRST COUNT
(Direct Copyright Infringement, 17 U.S.C. §501 et seq.)
49. Plaintiff repeats and incorporates by reference the allegations contained in the
50. The Photograph is an original, creative works in which Plaintiff owns valid
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51. Plaintiff has not licensed Defendant the right to use the Photograph in any
manner, nor has Plaintiff assigned any of its exclusive rights in the copyrights to Defendant.
Plaintiff's rights under 17 U.S.C. §106, Defendant improperly and illegally copied, stored,
constitutes willful copyright infringement. Feist Publications, Inc. v. Rural Telephone Service
Co., Inc., 499 U.S. 340, 361 (1991).
54. Plaintiff is informed and believes and thereon alleges that the Defendant
willfully infringed upon Plaintiff's copyrighted Photograph in violation of Title 17 of the U.S.
Code, in that they used, published, communicated, posted, publicized, and otherwise held out
to the public for commercial benefit, the original and unique Photograph of the Plaintiff without
Plaintiff's consent or authority, by using them in the infringing articles on the Website and
Accounts.
entitled to any an award of actual damages and disgorgement of all of Defendant's profits
in the alternative, at Plaintiff's election, an award for statutory damages against each Defendant
56. As a result of the Defendant' violations of Title 17 of the U.S. Code, the court in
its discretion may allow the recovery of full costs as well as reasonable attorney's fees and costs
U.S.C. § 502.
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SECOND COUNT
(Falsification, Removal and Alteration of Copyright Management
Information 17 U.S.C. § 1202)
58. Plaintiff repeats and incorporates, as though fully set forth herein, each and every
allegation contained in the preceding paragraphs, as though set forth in full herein.
59. Upon information and belief, Defendant knew that Plaintiff created and held
rights to the Photograph becauseinter alia, the source of the Photograph that Defendant used to
make its infringing copy specifically attributed the Photograph to Plaintiff by watermark or
photo credit.
60. Upon information and belief, in its article on the Website, Defendant copied the
Photograph from the electronic article in Modern Drummer magazine which contained a
photograph credit at the bottom of the Photograph stating “Story and photos by Sayre Berman”
management information related to the Photograph with the intent to induce, enable, facilitate,
or conceal an infringement of Plaintiff's rights under the Copyright Act. Specifically, Defendant
purposefully failed to include the photo credit originally conveyed with the Photograph in order
to mislead the public into believing that Defendant either owned the Photograph or had
legitimately licensed them for use in the Infringement. Upon information and belief, in addition
to removing the photo credit, Defendant also removed the metadata from the Photograph.
65. Upon information and belief, Defendant's falsification, removal and/or alteration
of the aforementioned copyright management information was made without the knowledge or
consent of Plaintiff.
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66. Upon information and belief, the falsification, alteration and/or removal of said
copyright management information was made by Defendant intentionally, knowingly and with
the intent to induce, enable, facilitate, or conceal their infringement of Plaintiff's copyright in
the Photograph. Defendant also knew, or should have known, that such falsification, alteration
and/or removal of said copyright management information would induce, enable, facilitate, or
67. Plaintiff has sustained significant injury and monetary damages as a result of
68. In the alternative, Plaintiff may elect to recover statutory damages pursuant to
17 U.S.C. § 1203(c)(3) in a sum of not more than $25,000 from Defendant for each violation
of 17 U.S.C. § 1202.
69. Alternatively, Plaintiff may elect to recover from Defendant 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.
JURY DEMAND
That the Court enters a judgment finding that Defendant has infringed on Plaintiff's
rights to the Photograph in violation of 17 U.S.C. §501 et seq. and award damages and monetary
relief as follows:
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whichever is larger;
to 17 U.S.C. § 1202;
d. for an order pursuant to 17 U.S.C. § 502(a) enjoining Defendant from
g. for any other relief the Court deems just and proper.
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