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CAUSE NO. /() - S/O

10 OCT 2 0 P~1 4: I 6

DAVID K. LANGFORD §

§

Plaintiff, §

§

vs. §

§

STATE OF TEXAS, STEVE §

MCCRAW, DIRECTOR OF TEXAS §

DEPARTMENT OF PUBLIC §

SAFETY, TEXAS DEPARTMENT §

OF PUBLIC SAFETY, BRAD §

LIVINGSTON, EXECUTIVE §

DIRECTOR OF TEXAS §

DEPARTMENT OF CRIMINAL §

JUSTICE, TEXAS DEPARTMENT §

OF CRIMINAL JUSTICE §

§

Defendants. §

hAY rU:Jc :,)i;J' ::dC r CLERK HENDt\LL GljU~; IY. TEXAS

IN THE DISTRICTBCooRYPD"h--

~'-JUDICIAL DISTRICT

KENDALL COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES DAVID K. LANGFORD, Plaintiff, and files this Original Petition

complaining of the State of Texas, Steve McCraw, Director of Texas Department of

Public Safety, Texas Department of Public Safety, Brad Livingston, Executive Director

of the Texas Department of Criminal Justice, and the Texas Department of Criminal

Justice, and would respectfully show the Court as follows:

Discovery Control Plan

1. Plaintiff intends to conduct discovery in this case under Level 3 of Texas

Rule of Civil Procedure 190.4.

Parties

2. Plaintiff is David K. Langford, a resident of Kendall County, Texas.

3. Defendant, Texas Department of Public Safety, is a state entity. Process

may be served on Defendant by and through its director, Steve McCraw, 5805 North Lamar Boulevard, Building A, Austin, Texas 78773.

4. Defendant, Steve McCraw, director of the Texas Department of Public

Safety, may be served with citation at 5805 North Lamar Boulevard, Building A, Austin, Texas 78773.

5. Defendant, Texas Department of Criminal Justice, is a state entity.

Process may be served on Defendant by and through its Executive Director, Brad Livingston, 861-B IH-45 North, Huntsville, Texas 77320.

6. Defendant, Brad Livingston, executive director of the Texas Department of

Criminal Justice, may be served with citation at 861-B IH-45 North, Huntsville, Texas 77320.

7. The State of Texas may be served by and through the Texas Secretary of

State, Secretary Hope Andrade, 1100 Congress Capitol Building, Room 1 E.8, Austin, Texas 78701.

Jurisdiction 81 Venue

8. Plaintiff seeks a sum in excess of the minimum jurisdictional limits of the

court.

9. Venue is proper in Kendall County because all or a substantial part of the

events or occurrences giving rise to the claim occurred in Kendall County, Texas. Tex. Civ. Prac. & Rem. Code § 15.002.

Bac~(ground

10. This is a suit for recovery of damages and injunctive relief for violation of

David K. Langford's copyright protection, and under Article I, Section 17 of the Texas Constitution.

11. David Langford is a long-time wildlife and western image photographer,

who is one of the industry's most accomplished artists. Throughout his career as a photographer, Mr. Langford has been the recipient of numerous prestigious awards and grants that validate his photography as art.

12. In early 1984, Mr. Langford photographed Robert Bracken at a roundup.

Near the end of the day, Mr. Langford captured an image that he refers to as "Days End 2," which depicts Mr. Bracken walking off into the sunset. E){hibit A. This image has consistently produced income for Mr. Langford since 1984.

13. In June 2010, Mr. Langford received an email from a friend in the

Dallas/Ft. Worth area who noticed one of Langford's images on the windshield of a vehicle. This person was shocked that the image on the windshield was, in fact, David Langford's Days End 2. The witness snapped a picture of the inspection sticker and sent it to Mr. Langford. Exhibit B. There is no question that Days End 2 and the image appropriated by the State of Texas on the inspection sticker are one and the same.

14. The Department of Public Safety contracts with the Texas Department of

Criminal Justice for the production of state vehicle inspection stickers. Apparently, the Day's End 2 cowboy silhouette was scanned by offender Jay VanStory in 1998. Mr. VanStory is serving a life sentence with the Texas Department of Criminal Justice for aggravated sexual assault. Upon information and belief, Mr. VanStory has additional convictions for felony theft, larceny, and theft of property. Mr. VanStory reported to state officials that he believed he took Mr. Langford's Day's End 2 image from a Texas

Parks & Wildlife Magazine and placed that image into the state database.

15. Ultimately, without any independent verification of the rights to the source

material used by the convicted thief, the Defendants placed Mr. Langford's copyrighted

image into circulation with no attribution or other protections whatsoever. The image is

currently used on inspection stickers in 15 counties (Brazoria, Collin, Dallas, Denton,

Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Montgomery, Parker, Rockwall,

Tarrant, Waller), where by the end of 2010 the Defendants will have reprinted the stolen

image millions of times.

Application for Temporary Injunction

16. Plaintiff's application for a temporary injunction is authorized by Tex. Civ.

Prac. & Rem. Code §§ 65.011 (1), (2), (3), and (5).

17. Plaintiff asks the court to issue a temporary injunction as follows:

a. Prohibiting the Defendants from any further use of Mr. Langford's Day's End 2 image;

b. Prohibiting the Defendants selling inspection stickers using Mr.

Langford's Day's End 2 image; and,

c. Commanding Defendants to immediately instruct their agents, employees, inspection stations, or inspectors from any further issuance of inspection stickers containing Mr. Langford's Day's End 2 image.

18. If Plaintiff's application is not granted, harm is imminent because

Defendants are currently taking action that will destroy, or seriously impair and damage,

the value of David K. Langford's intellectual property.

19. The wrongful appropriation of the Plaintiff's intellectual property has

already resulted in a significant actual revenue loss. The harm that will result if the

temporary injunction is not issued is irreparable because the value of Day's End 2 will

be permanently and/or increasingly damaged or destroyed by the saturation of the

image in the marketplace, and the damage to future sales and/or use of the image, all

from which the Plaintiff will not recover. Plaintiff has no adequate remedy at law

because the loss threatened is destruction of a valuable property as to which monetary

damages may be uncertain and/or unrecoverable.

20. Plaintiff is willing to post bond.

21. Plaintiff asks the court to set its application for temporary injunction for a

hearing and, after the hearing, issue a temporary injunction against defendant.

22. Plaintiff has joined all indispensable parties under Texas Rule of Civil

Procedure 39.

Request for Permanent Injunction

23. Plaintiff asks the court to set its request for a permanent injunction for a

full trial on the merits and, after the trial, issue a permanent injunction against

defendant.

CAUSES OF ACTION Unlawful Ta~{ing

24. For the reasons set forth in this petition, the Defendants' taking of

Plaintiff's property is unconstitutional and illegal, in that it constitutes an arbitrary,

capricious, and unreasonable action bearing no substantial relationship to the public

health, safety, and welfare. Plaintiff would further show that the Defendants' actions

effect a taking of Plaintiff's property in violation of the takings clause, Article I, Section

17 of the Texas Constitution.

Attorney's Fees

25. Mr. Langford has been required to obtain legal counsel to prosecute this

action. Plaintiff is, therefore, entitled to recover reasonable and necessary attorney's

fees for services rendered by counsel in the trial of this suit.

Prayer

Plaintiff, David K. Langford, requests that Defendants State of Texas, Steve

McCraw, Director of Texas Department of Public Safety, Texas Department of Public

Safety, Brad Livingston, Executive Director of the Texas Department of Criminal Justice,

and the Texas Department of Criminal Justice, be cited to appear and answer, and that

on final trial, that the Plaintiff have the following:

a. injunctive relief as requested herein;

b. judgment against the Defendants for actual damages and a sum within the jurisdictional limits of the court;

c. pre- and post-judgment interest as provided by law;

d. cost of suit; and,

e. such other and further relief to which Plaintiff may be justly entitled.

Respectfully submitted,

DROUGHT, DROUGHT & BOBBITT, L.L.P. 2900 Weston Centre

112 East Pecan Street

San Antonio, Texas 78205-1528 (210) 225-4031 Telephone

(210) 222-0586 Facsimile

By~A/~

. , amesw:carter, IV

State Bar No. 24006333

ATTORNEYS FOR PLAINTIFF, DAVID ~{. LANGFORD