maule v. williams, 13-cv-04428 (e.d. pa.)

8/22/2019 Maule v. Williams, 13-Cv-04428 (E.D. Pa.)

http://slidepdf.com/reader/full/maule-v-williams-13-cv-04428-ed-pa 1/35

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

R. Bradley Maule, indiv. and :

p/k/a PhillySkyline.Com, :

1617 John F. Kennedy Boulevard, :

Suite 1130 :

Philadelphia, PA 19103, :

: CIVIL ACTION

Plaintiff, : No.

v. :

:

R. Seth Williams :

District Attorney of Philadelphia :

Three South Penn Square : JURY TRIAL DEMANDED

Philadelphia, PA 19107-3499 :

:

:Defendant. :

COMPLAINT

Jurisdiction and Venue

1. The jurisdiction of this court is based upon 28 U.S.C. § 1400(a), in that Plaintiff isan owner of a valid copyright which has been infringed upon by the unlawful acts of Defendant herein, who regularly conducts business in the Eastern District of Pennsylvania.

2. Jurisdiction over this cause of action is also proper before this Court pursuant to28 U.S.C. § 1331 as this copyright infringement civil action arises under the Constitutionand/or laws of the United States, and Title 17 of the United States Code in particular.

3. Venue is proper in this district pursuant to 28 U.S.C. § 1400 and/or 28 U.S.C.§1391(b)(2) in that a substantial part of the events giving rise to Plaintiff’s claim forcopyright infringement occurred in the Eastern District of Pennsylvania and in thatDefendant has been broadcasting, selling and distributing infringing advertisements,and/or other media in the Philadelphia area, throughout the United States and abroad, aswell as on the Internet.

4. Venue is also proper in the Eastern District of Pennsylvania pursuant to 28 U.S.C.

§1391(c) in that the Defendant has substantial business contacts with the Eastern Districtof Pennsylvania as Defendant (or his agents) have been creating, broadcasting, sellingand distributing infringing advertisements, and/or other media in the Philadelphia area,throughout the United States and abroad, as well as on the Internet.



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Parties

5. Plaintiff R. Bradley Maule, individually and p/k/a PhillySkyline.Com, is a locallybased photographer, and is a citizen of the Commonwealth of Pennsylvania, who can beserved with process at the office of his undersigned counsel, located at 1617 John F.Kennedy Boulevard, Suite 1130, Philadelphia, PA 19103.

6. Defendant R. Seth Williams is an adult individual with a principal place of business located at the Office of the District Attorney of Philadelphia, Three South PennSquare, Philadelphia, PA 19107-3499 (and is a Pennsylvania citizen), and at all timesrelevant was and is the District Attorney of Philadelphia. Defendant Williams hasunlawfully infringed Plaintiff’s copyright.

Facts

7. Plaintiff is a well-known and highly respected Philadelphia photographer, whosework is regularly posted on his website, phillyskyline.com. Plaintiff’s talents indocumenting his attention on Philadelphia’s neighborhoods, its people, culture,architecture, and its urban development, are of such a caliber that he is perhaps thepremier photographer in Philadelphia today. His accomplishments are such that he isregularly consulted by a variety of media concerning the aforementioned areas of interest,and his website is beloved by countless fans throughout the Philadelphia region andbeyond.

8. In May 2005, Plaintiff took a unique photograph of the Philadelphia skyline, fromthe 18th floor of Penn Tower, the hotel located high above Franklin Field and positioned

on the west side of the Schuylkill River.

9. The photograph itself was a wide, expansive shot of the Center City skyline inparticular, encompassing a panoramic view from the Commerce Square buildings locatedat 2100 Market Street to the apartment buildings around Rittenhouse Square. A true andcorrect copy of the photograph is attached hereto and incorporated herein as Exhibit A.

10. The Plaintiff then took his photograph, and altered it in the following fashion, towit:

a) the Plaintiff placed artistic conceptual renderings of the finished versionsof Comcast Center and Mandeville Place, and placed them in his

photograph, at their approximate locations, then under construction; and,

b) in addition, the Plaintiff altered a billboard that appeared above anapartment building beside the Schuylkill river to read “Visit Philly SkylineDot Com” in order to serve as a watermark/signifier of his own creation.



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A true and correct copy of the Plaintiff’s enhanced photograph is attached heretoand incorporated herein as Exhibit B (hereinafter the “Projected Skyline Photograph.”).

11. Immediately thereafter, on May 9, 2005, Plaintiff posted the Projected SkylinePhotograph on his website as a visual representation of what the Philadelphia skylinewould look like in 2008 A true and correct copy of the posting of the Projected SkylinePhotograph on Plaintiff’s website is attached hereto and incorporated herein as Exhibit C.

12. Then, on or about April 1, 2013, the Plaintiff discovered that the Defendant hadbeen using Plaintiff’s photograph as a background picture for the Defendant’s Twitterwebpage located at http://www.twitter.com/dasethwilliams (hereinafter the “Twitterwebpage.”). A true and correct copy of the Defendant’s Twitter webpage, on April 1,2013, is attached hereto and incorporated herein as Exhibit D

13. On or about April 23, 2013, Plaintiff gave an interview to Philebrity.com, a localnews and gossip website, wherein Plaintiff identified (via a link in the article) that theDefendant had been unlawfully using Plaintiff’s photograph without Plaintiff’s

permission. (Plaintiff’s interview with Philebrity is attached hereto and incorporatedherein as Exhibit E).

14. Defendant nonetheless continued to unlawfully use Plaintiff’s photograph on hisTwitter webpage.

15. Then, on this past Election Day (May 21, 2013) Plaintiff was having lunch withhis undersigned counsel at Famous 4th Street Deli, at 4th and Bainbridge Streets, inPhiladelphia, when the Defendant suddenly appeared beside Plaintiff’s table.

16. Undersigned counsel introduced the Plaintiff to the Defendant, whereupon

undersigned counsel said to the Defendant, “Seth, this is Brad Maule, who’s aphotographer in town. You’ve been using one of his photographs on your Twitter page,and we don’t know who to ask to prosecute you for the theft!”

17. Plaintiff then explained to the Defendant, in an absolutely friendly and respectfultone and manner, that the Defendant was using Plaintiff’s aforementioned photograph asa background picture on the Defendant’s Twitter page, without Plaintiff’s permission.

18. Defendant immediately denied using Plaintiff’s photograph on Defendant’sTwitter webpage.

19. On July 26, 2013, undersigned counsel contacted the Defendant at his office and

informed the Defendant of the continued, unauthorized use of Plaintiff’s photograph onthe Defendant’s Twitter webpage. Defendant then contacted undersigned counsel, andinformed him that he took the photograph down from Defendant’s Twitter webpage. (Atrue and correct screengrab of Defendant’s Twitter webpage on July 26, 2013 is attachedhereto and incorporated herein as Exhibit F).



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20. On July 29, 2013, however, it was apparent that despite his aforementionedrepresentation to the contrary, the Defendant did not remove Plaintiff’s photograph fromthe Defendant’s Twitter webpage, and undersigned counsel for the Plaintiff left amessage at the Defendant’s office regarding the same. (A true and correct screengrab of Defendant’s Twitter webpage on July 29, 2013 is attached hereto and incorporated hereinas Exhibit G).

21. On the afternoon of July 30, 2013, the Defendant’s secretary, Regina Purtell,called undersigned counsel for the Plaintiff, and asked for proof that the Plaintiff’spicture was on the Defendant’s Twitter webpage. Undersigned counsel suggested to thesecretary that she look at http://www.twitter.com/dasethwilliams on her computer, but thesecretary said she was unable to look at websites from her office computer, and requestedthat undersigned counsel forward a screengrab to her via email. (A true and correctscreengrab of Defendant’s Twitter webpage on July 30, 2013 is attached hereto andincorporated herein as Exhibit H, and a true and correct copy of the email forwarding saidscreengrab is attached hereto and incorporated herein as Exhibit I).

22. Within an hour of sending Exhibits H and I to Regina Purtell, the Defendanthimself then called undersigned counsel and again claimed that there was no suchphotograph on the Defendant’s Twitter webpage, because the Defendant was looking athis Twitter account on his smartphone and there was no skyline on his smartphonerendition of his Twitter account.

23. Undersigned counsel for the Plaintiff then asked Defendant to look at his Twitterwebpage on his computer at work, and Defendant said that he could not look at it on hisoffice computer.

24. Undersigned counsel for the Plaintiff then asked Defendant to look at his Twitter

webpage on a “regular person’s computer,” to which Defendant replied that he didn’thave access to a “regular person’s computer” and that any claim of copyrightinfringement in this regard was “silly bullshit.” Defendant then suggested thatundersigned counsel might as well go ahead and file this lawsuit for copyrightinfringement.

25. The infringing Twitter webpage is clearly a theft and carbon copy of Plaintiff’sProjected Skyline Photo, as many of the attributes of the Plaintiff’s photo (in particular,his artistic conceptions and placement of Comcast Center and Mandeville Place ) areevident therein. Compare Exhibits B and C with Exhibits D, F, G and H.

26. Indeed, as further evidence of stealing the Projected Skyline Photo, the

Defendant’s Twitter webpage clearly demonstrates the watermark/billboard fromPlaintiff’s photograph, which is conspicuously centered on the right hand side of thephotograph in Exhibits D, F, G & H reading “Visit Philly Skyline Dot Com.”

27. The Defendant intentionally stole the Plaintiff’s photo and/or intentionallymaintained it on his Twitter webpage, as Defendant was notified of the theft on at least



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one occasion by the Plaintiff himself at Famous 4th

Street, as aforementioned, and theDefendant nonetheless continued to use Plaintiff’s photograph without permission.

28. At best, the District Attorney of Philadelphia has no idea how to use a computer, asmartphone, a Twitter account and/or a Twitter webpage.

29. At worst, the Defendant lied and/or misrepresented to the Plaintiff, on no less thanthree separate occasions (May 21, 2013, July 26, 2013 and July 30, 2013) that he eitherdid not have Plaintiff’s picture on Defendant’s Twitter webpage, or that he removed thePlaintiff’s photograph from his Twitter webpage.

30. Plaintiff’s Projected Skyline Photograph was registered with the CopyrightOffice, with an effective copyright registration date of May 13, 2008 at registrationnumber VA 1-632-353. See Copyright Registration, a true and correct copy of which isattached hereto and incorporated herein as Exhibit J.

31. The Defendant has intentionally and unlawfully stolen and reproduced the

Plaintiff’s photograph, infringing upon his copyright therein and inuring considerableprofits and/or publicity from the same.

32. In so doing, the Defendant has been producing the infringing Twitter webpagethrough his own websites and/or other media, adding to the considerable publicpopularity of his own political career and/or services, and thereby infringing uponPlaintiff’s copyright therein and inuring considerable profits and/or publicity from thesame.

33. Upon information and belief, the Defendant owns a copyright (via registrationwith the Copyright Office or automatically by statute) to his own infringing Twitter

webpage.

34. Upon information and belief, no copyright registration submitted by theDefendant to the Registrar of Copyrights mentions any derivation in Plaintiff’s originalphotography, as aforementioned.

35. By contrast, Plaintiff properly registered his copyright interest in theaforementioned photograph, by delivering his application, deposit material (consisting of two CD copies of the work), along with the required payment, to the Copyright Registrar.Plaintiff has an official copyright for the aforementioned works from the Library of Congress with an effective registration date of May 13, 2008. See Exhibit J.

36. The Defendant never contacted the Plaintiff at any time prior to, during, or afterthe infringing Twitter webpage was published, concerning the use of his aforementionedphotograph.

37. Plaintiff did not give his consent, permission or license, in any way, to theDefendant to reproduce his copyrighted photograph, in any fashion, for any use in the



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infringing Twitter webpage. The Defendant reproduced Plaintiff’s copyrightedphotograph anyway, in violation of 17 U.S.C. § 106(1).

38. The Plaintiff did not give his consent, permission or license, in any way, to theDefendant to specifically include Plaintiff’s copyrighted photograph as a derivative workcontained in the infringing Twitter webpage. The Defendant prepared the derivativework – namely, the infringing Twitter webpage – based upon Plaintiff’s copyrightedphotograph anyway, in violation of 17 U.S.C. § 106(2).

39. The Plaintiff did not give his consent, permission or license, in any way, to theDefendant to specifically engage in the public distribution of Plaintiff’s copyrightedphotographs contained in the infringing Twitter webpage. Through the creation,publication, distribution, unlawful registration of copyright and/or sale of the infringingTwitter webpage, the Defendant publicly distributed Plaintiff’s copyrighted photographanyway, in violation of 17 U.S.C. § 106(3).

40. The Plaintiff did not give his consent, permission or license in any way to the

Defendant to specifically include Plaintiff’s copyrighted photograph in any public display(such as the infringing Twitter webpage). The Defendant performed and/or displayedPlaintiff’s copyrighted photograph anyway, in violation of 17 U.S.C. § 106(4) and/or §106(5).

41. The Defendant has not compensated the Plaintiff in any fashion whatsoever forthe use of his copyrighted photograph in the creation, publication, distribution, unlawfulregistration of copyright and/or sale of the infringing Twitter webpage and/or use of thePlaintiff’s photo therein.

42. Upon information and belief, the Defendant’s infringing behavior, as

aforementioned, has generated great utility for the Defendant and assisted him in hispolitical and governmental career –without the Plaintiff’s permission, and without anyremuneration to the Plaintiff.

43. The Defendant knowingly and willfully, directly and/or derivatively, copiedwithout independent creation, Plaintiff’s copyrighted photograph for the specific purposeof infringing upon Plaintiff’s copyright and to unlawfully enrich the Defendant atPlaintiff’s expense, as the Defendant never obtained a license from the Plaintiff, let alonehis consent or permission, for the specific use of his copyrighted photograph in theinfringing Twitter webpage.

PLAINTIFF v. DEFENDANTCOUNT I

COPYRIGHT INFRINGEMENT – 17 U.S.C. § 501 et. seq.

Request for Damages pursuant to

17 U.S.C. §§503 through 505



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44. Averments 1 through 43 are incorporated as though fully set forth herein atlength.

45. The infringing Twitter webpage flagrantly infringes upon the Plaintiff’scopyrighted photo, as aforementioned. Compare Exhibits B and C with Exhibits D, F, Gand H.

46. Upon information and belief, the Defendant falsely copyrighted (and/orautomatically enjoys a copyright in) the infringing Twitter webpage as an original work,with no credit given for the derivative photograph of the Plaintiff which is includedtherein.

47. As set forth more comprehensively above, the Defendant has willfully anddeliberately infringed upon Plaintiff’s copyrighted photograph, and continues to do so onon his Twitter website and on the Internet, despite being advised of the theft on numerousoccasions.

48. At no time did the Defendant have a license or authority of any kind tospecifically use Plaintiff’s copyrighted photograph in the infringing Twitter webpage.

49. The express use and inclusion of Plaintiff’s copyrighted photograph in theinfringing Twitter webpage, as aforementioned, is evidence of the Defendant’s directaccess to the same; furthermore, the literal reproduction of the Plaintiff’s photograph (andthe clear appearance of the Plaintiff’s watermark/billboard in Exhibits D, F, G and H)raises a clear inference of such access.

50. The Defendant has willfully infringed on the copyright owned by Plaintiff, whichwas properly registered with the Copyright Office. See Exhibit J.

51. Based on the foregoing, and pursuant to 17 U.S.C. § 504, Plaintiff is entitled tohave the Defendant disgorge all profits earned (directly or indirectly) as a result of Defendant’s copyright infringement.

52. In the alternative to payment of Defendant’s profits, pursuant to 17 U.S.C. § 504,Plaintiff is entitled to One Hundred Fifty Thousand ($150,000) Dollars per willfulinfringement after the date of registration of the official copyright.

53. In addition, pursuant to 17 U.S.C. § 503, Plaintiff respectfully requests thisHonorable Court to order the impounding of the infringing Twitter webpage, and to orderthe Defendant to cease and desist from further broadcasting the infringing Twitter

webpage in any fashion, including on the internet, as the same is in violation of Plaintiff’scopyright.

54. In addition, pursuant to 17 U.S.C. § 505, Plaintiff respectfully requests thisHonorable Court to order the Defendant to pay all costs incurred by the Plaintiff in theprosecution of this civil action, including, but not limited to, attorney’s fees.



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WHEREFORE, Plaintiff requests judgment against the Defendant for anaccounting of all profits derived from use of the Plaintiff’s copyrighted photograph, pluscompensatory, punitive, and/or statutory damages, in excess of $150,000 (ONEHUNDRED FIFTY THOUSAND DOLLARS) representing said damages, Defendant’sprofits, interest, costs, attorney’s fees, and such other relief as the Court deemsappropriate.

PLAINTIFF v. DEFENDANT

COUNT II

COPYRIGHT INFRINGEMENT – 17 U.S.C. § 501 et. seq.

Request for Injunctive Relief pursuant to

17 U.S.C. §§502

55. Averments 1 through 54 are incorporated as though fully set forth herein atlength.

56. The Defendant has willfully infringed on the copyright owned by Plaintiff, whichwas properly registered with the Copyright Office. See Exhibit J.

57. Defendant’s infringement, use, sale and/or pirating of Plaintiff’s copyrightedphotograph has caused permanent and irreparable harm to Plaintiff.

58. Unless an injunction is granted barring Defendant from further distributing,marketing, selling, publishing, or otherwise promoting his infringing Twitter webpage,

Plaintiff will continue to suffer ongoing irreparable harm.

59. Plaintiff does not have an adequate remedy at law.

60. Based upon the clear and willful violations in this case, and the unlawful inclusionof Plaintiff’s photograph in the infringing Twitter webpage, Plaintiff has a substantiallikelihood of success on the merits.

61. Greater harm will befall the Plaintiff than the Defendant if the injunctive relief herein is not granted.

62. Pursuant to 17 U.S.C. § 502, Plaintiff respectfully requests this Honorable Court

to grant a temporary and/or final injunction on such terms as this Court deems reasonableto prevent and restrain the infringement of Plaintiff’s copyright.

WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter anOrder:



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(a) restraining the Defendant and his agents, domestically and abroad, frompromoting, selling, marketing, advertising, shipping, transporting (directlyor indirectly) or otherwise moving in domestic or foreign commerce, anyand all products which infringe upon Plaintiff’s copyrighted work; and/or,

(b) ordering Defendant to forfeit (and/or recall) the infringing Twitterwebpage; and/or,

(c) ordering Defendant to recall or remove any and all of his catalogs,websites, books, posters or brochures or other material which contain aninfringement of Plaintiff’s work; and/or,

(d) ordering all of Defendant’s agents to refrain from selling or marketing theinfringing Twitter webpage in question; and/or,

(e) ordering that Plaintiff be remunerated for his work in any future versionssold; and/or,

(f) providing such other relief as the Court deems just, including costs andattorney’s fees.


COUNT III

Request for Declaratory Relief pursuant to

28 U.S.C. §2201

63. Averments 1 through 62 are hereby incorporated as though fully set forth hereinat length.

64. Upon information and belief, Defendant falsely filed for copyright protection(and/or enjoys copyright protection automatically) on the infringing Twitter webpage, asDefendant did not identify the infringing advertisement as being derivative of Plaintiff’scopyrighted photograph.

65. Defendant falsely filed for copyright protection (and/or enjoys copyrightprotection automatically) on the infringing Twitter webpage, knowing that Plaintiff’sphotograph enjoys copyright protection. This raises a legal dispute that can properly bedecided by a request for a declaratory judgment that Defendant’s copyright in theinfringing Twitter webpage is invalid.

66. Defendant’s copyright in the infringing Twitter webpage should be invalidatedbased upon Defendant’s use of Plaintiff’s original photograph for unlawful inclusiontherein.

WHEREFORE, Plaintiff respectfully requests for judgment declaring Defendant’scopyright as it applies to the infringing Twitter webpage to be invalid as said copyright is



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a derivative of Plaintiff’s copyrighted photograph, and Plaintiff is entitled to protection of the copyright. Plaintiffs also seek all attorneys fees and costs incurred in seeking thisdeclaratory action.


COUNT IV

SUPPLEMENTAL STATE LAW CLAIM

RESTATEMENT (SECOND) TORTS, § 652(c)


68. The Defendant appropriated the name and/or likeness and/or identity of Plaintiff (p/k/a PhillySkyline.Com) by including his photograph and/or his watermark in theinfringing Twitter webpage.

69. The Defendant thereby appropriated the name and/or likeness and/or identity of Plaintiff, as well as his photograph, for a commercial purpose – namely, the Defendant’sown political advertising.

70. Plaintiff never consented to the appropriation of his name and/or likeness and/oridentity for the Defendant’s use thereof in the infringing Twitter webpage.

71. The Defendant neither consulted with, nor obtained a license or permission from,the Plaintiff to appropriate Plaintiff’s name and/or likeness in the infringingadvertisement.

72. Plaintiff is offended and aggrieved that his name and/or likeness and/or identity,not to mention the brazen use of his copyrighted photograph, was manipulated for thecommercial and/or political aspirations of the Defendant in the infringing Twitterwebpage, without any remuneration to Plaintiff whatsoever.

WHEREFORE, Plaintiff requests judgment against the Defendant for anaccounting of all profits derived from use of the Plaintiff’s copyrighted photograph, pluscompensatory, punitive, and/or statutory damages, in excess of $150,000 (ONEHUNDRED FIFTY THOUSAND DOLLARS) representing said damages, Defendant’sprofits, interest, costs, attorney’s fees, and such other relief as the Court deemsappropriate.

PLAINTIFF v. DEFENDANTS

COUNT V

SUPPLEMENTAL STATE LAW CLAIM

54 Pa.C.S.A. §§ 1124 and 1125



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74. Plaintiff is the owner of a mark (Phillyskyline.com) which is famous in thisCommonwealth, and which appears on every web page on his site (at the very least,within the address bar of his webpage).

75. The Defendants knowingly, willfully, outrageously, intentionally, wantonly,recklessly and/or maliciously used and/or abused Plaintiff’s mark by including theaforementioned photograph with Plaintiff’s watermark, as aforementioned, forpublication on the infringing Twitter webpage, and did so after Plaintiff’s mark hadbecome famous.

76. The Defendant’s actions and/or inactions in this regard have caused the dilution of the distinctive quality of Plaintiff’s mark.

77. The Defendant knowingly, willfully, outrageously, intentionally, wantonly,

recklessly and/or maliciously intended to trade on the Plaintiff’s reputation or to causedilution of Plaintiff’s mark.

78. The Defendant knowingly, willfully, outrageously, intentionally, wantonly,recklessly and/or maliciously and/or in bad faith used Plaintiff’s photograph for inclusionin the infringing Twitter webpage, as aforementioned.

WHEREFORE, pursuant to 54 Pa.C.S.A. § 1125, Plaintiff respectfully requests judgment against the Defendant, and an Order requiring the Defendant to pay to Plaintiff all profits derived from and all damages suffered by reason of his wrongful use, displayor sale of Plaintiff’s photograph, plus punitive and/or treble damages and reasonable

attorney fees, in excess of $150,000 (ONE HUNDRED FIFTY THOUSANDDOLLARS).

DEMAND FOR JURY TRIAL

Trial by a jury of twelve (12) persons is demanded as to all issues.

Respectfully Submitted,

Date: July 31, 2013 _____________________________J. Conor Corcoran, Esquire

1617 John F. Kennedy BoulevardSuite 1130Philadelphia, PA 19103Phone: (215) 977-9300Fax: (215) 864-0188



IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

R. Bradley Maule, indiv. and :

p/k/a PhillySkyline.Com, :

1617 John F. Kennedy Boulevard, :

Suite 1130 :

Philadelphia, PA 19103, :

: CIVIL ACTION

Plaintiff, : No.

v. :

:

R. Seth Williams :

District Attorney of Philadelphia :

Three South Penn Square : JURY TRIAL DEMANDED

Philadelphia, PA 19107-3499 :

:

:Defendant. :

CERTIFICATE OF SERVICE

I, J. Conor Corcoran, Esquire, hereby certify that a true and correct copy of the

Complaint in the above captioned matter has been sent to the following by first class,

United States, certified mail:

R. Seth Williams

District Attorney of PhiladelphiaThree South Penn Square

Philadelphia, PA 191073499

Date: July 31, 2013 _______________________

J. Conor Corcoran, Esquire

maule v. williams, 13-cv-04428 (e.d. pa.)

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