Lauth Answer

Case 1:23-cv-01678-JPH-MKK Document 21 Filed 01/03/24 Page 1 of 11 PageID #: 91
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID HOFFMAN, )
)
Plaintiff, ) CASE NO. 1:23-cv-1678 JPH-MKK
)
vs. )
)
LAUTH INVESTIGATIONS )
INTERNATIONAL, LLC, )
)
Defendant. )
DEFENDANT LAUTH INVESTIGATIONS INTERNATIONAL, LLC’S

ANSWER AND AFFIRMATIVE DEFENSES TO THE COMPLAINT,
AND DEMAND FOR JURY TRIAL
Defendant Lauth Investigations International, LLC (“Lauth”) herewith file its Answer
and Affirmative Defenses to Plaintiff’s Complaint. Lauth responds to the individually numbered
paragraphs in Plaintiff’s Complaint as follows:
PARTIES
1. Plaintiff is an individual who is a citizen of the United Kingdom.
ANSWER: Lauth lacks knowledge and information sufficient to form a belief about the
truth of the allegation contained in Paragraph 1 of the Complaint, and therefore the allegation is
DENIED, in its entirety.
2. Defendant is a corporation organized and existing under the laws of the State of
Indiana with its principal place of business located at 201 N Illinois Street, 16th Floor South
Tower, Indianapolis, IN 46204. Defendant’s agent for service of process is Thomas Lauth, 201 N
Illinois Street, 16th Floor South Tower, Indianapolis, IN 46204.
ANSWER: Lauth DENIES that it is a corporation organized and existing under the laws
of the state of Indiana. Lauth ADMITS that on the date of filing Lauth was located at 201 N
Illinois Street, 16th Floor South Tower, Indianapolis, IN 46204 and that its agent for service of
process is Thomas Lauth, 201 N Illinois Street, 16th Floor South Tower, Indianapolis, IN 46204.
1
JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§1331 and 1338(a).
ANSWER: Lauth ADMITS allegation contained in Paragraph 3 of the Complaint.
4. This Court has personal jurisdiction over Defendant because it has maintained
sufficient minimum contacts with Indiana such that the exercise of personal jurisdiction over it
would not offend traditional notions of fair play and substantial justice.
ANSWER: Lauth ADMITS allegation contained in Paragraph 4 of the Complaint.

5. Venue properly lies in this district pursuant to 28 U.S.C. § 1400(a) because
Defendant or its agents reside or may be found in this district. “A defendant in a copyright action
‘may be found’ in a district where he is subject to the district court's personal jurisdiction.”
Martino v. Orchard Enters., No. 20 C 2267, 2020 U.S. Dist. LEXIS 199687, at *18 (N.D. Ill.
Oct. 27, 2020); see also Store Decor Div. of Jas Int'l, Inc. v. Stylex Worldwide Indus., Ltd., 767
F. Supp. 181, 185 (N.D. Ill. 1991) (“Thus, if a court has personal jurisdiction over the defendants
in a copyright infringement action, venue in that court’s district is proper.”).
ANSWER: Without admitting or agreeing to the validity of the law cited by Plaintiff in
Paragraph 5 of the Complaint, Lauth ADMITS venue lies properly in this district.
FACTS
I. Plaintiff’s Business
6. Plaintiff has been an independent photojournalist for close to 50 years, capturing

images of protests surrounding social issues such as policing, homelessness, drugs, racial and
social conflict, social exclusion, and environmental protection.
truth of the allegations contained in Paragraph 6 of the Complaint, and therefore the allegations
are DENIED, in their entirety.
7. Described as “the riot photographer’s riot photographer,” Plaintiff’s work has led
to supported legal challenges, brought racist perpetrators to justice, and reached wide audiences
through mass media publication. His work brings uncomfortable realities to the forefront in an
effort for its viewers to recognize the world as others live it.
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8. Based in the UK, he is also a founding member and was, until retiring in 2016,
lead moderator of Editorial Photographers UK and Photo-Forum London which have a critical
interest in issues relevant to a photographer’s business such as copyright, intellectual property,
licensing, fees, and insurance.
9. A sample of Plaintiff’s work is available for viewing on his professional website

(at https://www.hoffmanphotos.com/) where one can also contact him for more information and
pricing.
ANSWER: A portion of paragraph 9 requires neither admission nor denial, that is,
whether “… A sample of Plaintiff’s work is available for viewing on his professional website;
Lauth lacks knowledge and information sufficient to form a belief about the truth of the
remaining allegation contained in Paragraph 9 of the Complaint, and therefore the allegation is
DENIED, in their entirety.
10. Generally, at the time Plaintiff creates his professional photography, he applies
copyright management information to such photography consisting of “© David Hoffman”
(embedded in the file and displayed as an overlay on his website). Plaintiff does this for added
protection/assurance to keep unauthorized persons from utilizing/displaying Plaintiff’s work.
II. The Work at Issue in this Lawsuit
11. Between 1990-1992, Plaintiff created a professional photograph of a homeless

mentally ill woman pushing a trolley in St. Paul’s, London, UK titled “Homeless Woman 1” (the
“Work”).
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12. Consistent with Plaintiff’s general practices, the Work contains (in the bottom
right corner) Plaintiff’s copyright management information as follows: “© David Hoffman.” A
copy of the Work is exhibited below.
13. The Work was registered by Plaintiff with the Register of Copyrights on August
25, 2005, and was assigned Registration No. VA 1-344-035. A true and correct copy of the
Certificate of Registration pertaining to the Work is attached hereto as Exhibit “A.”
14. Plaintiff is the owner of the Work and has remained the owner at all times
material hereto.
III. Defendant’s Unlawful Activities
15. Defendant is an independent investigation firm whose clientele includes

corporations, law firms, and individuals. It specializes in investigating cases of missing adults
and children.
ANSWER: Lauth ADMITS allegations contained in Paragraph 15 of the Complaint.

16. Defendant primarily advertises/markets its services through its website
(https://www.lauthmissingpersons.com/ and https://lauthinvestigations.com/) and social media
(e.g., https://www.facebook.com/LauthInvestigationsInt/ and https://twitter.com/Lauthinv).
are DENIED, in their entirety. In particular, the term “primarily” is undefined and, further,
vague and ambiguous; as such, Lauth cannot possibly form an opinion as to the truthfulness of
said allegations.
4
17. On August 21, 2019 (after Plaintiff’s above-referenced copyright registration of

the Work), Defendant published the Work on its website (at
https://www.lauthmissingpersons.com/americas-homeless-are-going-missing/) in connection
with an article titled “America’s Homeless Are Going Missing”:
ANSWER: Lauth DENIES the allegations contained in Paragraph 17 of the Complaint.
18. In publishing the Work online, Defendant cropped the Work so as to remove
Plaintiff’s copyright management information. The remaining details of the photograph,
however, unequivocally show the two photographs to be the same. A true and correct copy of
screenshots of Defendant’s website, displaying the copyrighted Work, is attached hereto as
Exhibit “B.”
19. Defendant is not and has never been licensed to use or display the Work.
Defendant never contacted Plaintiff to seek permission to use the Work in connection with its
business or for any other purpose – even though the Work that was copied clearly displayed
Plaintiff’s copyright management information and put Defendant on notice that the Work was
not intended for public use.
20. Defendant utilized the Work for commercial use.
ANSWER: Lauth DENIES the allegation contained in Paragraph 20 of the Complaint in

its entirety.
21. Upon information and belief, Defendant located a copy of the Work on the
internet (with the copyright management information still intact) and, rather than contact
Plaintiff to secure a license, simply copied the Work for its own commercial use.

its entirety.
5
22. Through his ongoing diligent efforts to identify unauthorized use of his
photographs, Plaintiff discovered Defendant’s unauthorized use/display of the photograph in
May 2022. Following Plaintiff’s discovery of the photograph, Plaintiff notified Defendant in
writing of such unauthorized use. To date, Plaintiff has been unable to negotiate a reasonable
license for the past/existing infringement of his Work.
truth of the allegation that “… Through his ongoing diligent efforts to identify unauthorized use
of his photographs, Plaintiff discovered Defendant’s unauthorized use/display of the photograph
in May 2022. …” and therefore that allegation is DENIED by Lauth in its entirety. Lauth
ADMITS that it was contacted by Plaintiff about the Work. The foregoing notwithstanding,
Lauth OBJECTS to the final sentence in paragraph 22 of the Complaint and moves to STRIKE
the same as said commentary is protected under Fed. R. 401 as PRIVILEGED.
23. All conditions precedent to this action have been performed or have been waived.
truth of the allegation contained in Paragraph 23 of the Complaint, and therefore the allegation is
DENIED, in its entirety.
COUNT I – COPYRIGHT INFRINGEMENT
24. Plaintiff re-alleges and incorporates paragraphs 1 through 23 as set forth above.
ANSWER: Paragraph 24 of the Complaint requires neither admission nor a denial.
25. The Work is an original work of authorship, embodying copyrightable subject

matter, that is subject to the full protection of the United States copyright laws (17 U.S.C. § 101
et seq.).
26. Plaintiff owns a valid copyright in the Work, having registered the Work with the
Register of Copyrights and owning sufficient rights, title, and interest to such copyright to afford
Plaintiff standing to bring this lawsuit and assert the claim(s) herein.
6
27. As a result of Plaintiff’s reproduction, distribution, and public display of the

Work, Defendant had access to the Work prior to its own reproduction, distribution, and public
display of the Work on its business website.
28. Defendant reproduced, distributed, and publicly displayed the Work without
authorization from Plaintiff.
ANSWER: Lauth DENIES the allegations contained in Paragraph 28 of the Complaint in

their entirety.
29. By its actions, Defendant infringed and violated Plaintiff’s exclusive rights in
violation of the Copyright Act, 17 U.S.C. § 501, by reproducing, distributing, and publicly
displaying the Work for its own commercial purposes.

their entirety.
30. Defendant’s infringement was willful as it acted with actual knowledge or
reckless disregard for whether its conduct infringed upon Plaintiff’s copyright. Defendant clearly
understands that professional photography such as the Work is generally paid for and cannot
simply be copied from the internet.

their entirety.
31. Plaintiff has been damaged as a direct and proximate result of Defendant’s
infringement.

its entirety.
7
32. Plaintiff is entitled to recover his actual damages resulting from Defendant’s
unauthorized use of the Work and, at Plaintiff’s election (pursuant to 17 U.S.C. § 504(b)),
Plaintiff is entitled to recover damages based on a disgorgement of Defendant’s profits from
infringement of the Work, which amounts shall be proven at trial.

its entirety.
33. Alternatively, and at Plaintiff’s election, Plaintiff is entitled to statutory damages

pursuant to 17 U.S.C. § 504(c), in such amount as deemed proper by the Court.

their entirety.
34. Pursuant to 17 U.S.C. § 505, Plaintiff is further entitled to recover his costs and
attorneys’ fees as a result of Defendant’s conduct.

their entirety.
35. Defendant’s conduct has caused, and any continued infringing conduct will
continue to cause, irreparable injury to Plaintiff unless enjoined by the Court. Plaintiff has no
adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a permanent
injunction prohibiting infringement of Plaintiff’s exclusive rights under copyright law.

their entirety.
35. a-g.
ANSWER: Paragraphs 35 a-g of the Complaint require neither admission nor a denial.
To the extent the same requires some response, Lauth DENIES that Plaintiff is entitled to any
relief as to Lauth under its Complaint.
COUNT II – REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION
36. Plaintiff re-alleges and incorporates paragraphs 1 through 23 as set forth above.
ANSWER: Paragraph 36 of the Complaint require neither admission nor a denial.
37. As evidenced above, the Work contains copyright management information

identifying Plaintiff as the owner/creator of the Work.
8
38. Defendant knowingly and with the intent to enable or facilitate copyright
infringement, removed the copyright management information from the Work in violation of 17
U.S.C. § 1202(b). Defendant did not simply recklessly copy the Work in a pre-altered state –
Defendant itself deliberately caused the copyright management information to be removed.

their entirety.
39. Defendant committed these acts knowing or having reasonable grounds to know
that it will induce, enable, facilitate, or conceal infringement of Plaintiff’s rights in the Work.

their entirety.
40. If Defendant did not remove the copyright management information itself,
Defendant caused, directed, and authorized others to commit these acts knowing or having
reasonable grounds to know that it will induce, enable, facilitate, or conceal infringement of
Plaintiff’s rights in the Work.

their entirety.
41. As a direct and proximate result of Defendant’s conduct in removing the
foregoing copyright management information, Plaintiff has been damaged.

their entirety.
42. Defendant’s conduct has caused and any continued infringing conduct will
continue to cause irreparable injury to Plaintiff unless enjoined by the Court. Plaintiff has no
adequate remedy at law. Pursuant to 17 U.S.C. § 1203(b), Plaintiff is entitled to a permanent
injunction prohibiting any further violation of 17 U.S.C. § 1202 by Defendant.

their entirety.
9
42. a-g.
ANSWER: Paragraphs 42 a-g of the Complaint require neither admission nor a denial.
To the extent the same requires some response, Lauth DENIES that Plaintiff is entitled to any
relief as to Lauth under its Complaint.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
1. The Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE

2. Plaintiff’s claims are barred by the doctrine of unclean hands.
THIRD AFFIRMATIVE DEFENSE

3. Plaintiff does not own any purported copyright rights to the Work at issue in this
case.
FOURTH AFFIRMATIVE DEFENSE
4. Lauth has not infringed or otherwise violated any copyright rights, or any other
purported rights of Plaintiff.
FIFTH AFFIRMATIVE DEFENSE
5. Plaintiff’s claims are barred under the doctrines of consent and/or waiver.
SIXTH AFFIRMATIVE DEFENSE

6. Plaintiff’s claims are barred under the doctrine of estoppel.
SEVENTH AFFIRMATIVE DEFENSE

7. Plaintiff’s claims are barred because Plaintiff failed to join an essential party to
the claims raised by Plaintiff in the Complaint and the party which Plaintiff should have added
was known to Plaintiff at the time Plaintiff filed his complaint.
EIGHT AFFIRMATIVE DEFENSE
8. Plaintiff’s claims are barred because, as to Lauth because said claims are
vexatious and frivolous and otherwise barred under Fed. R. 11; as such, Lauth places Plaintiff
and this Honorable Court on notice that Lauth believes it is entitled to an award of all fees and
costs to which it would be entitled to collect under Fed. R. 11. Plaintiff is encouraged to dismiss
his Complaint, as to Defendant, with prejudice, immediately and, if no just dismissal is
forthcoming, Lauth hereby reserves the right, as Plaintiff is on notice of its Rule 11 claims, to
assert the same in the future.
10
AFFIRMATIVE DEFENSES UNKNOWN

9. Plaintiff’s hereby reserves the right to assert any other affirmative defense as yet
unknown to it.
Demand For Jury Trial
Defendant demands a trial by jury on all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, having fully answered Plaintiff’s Complaint and asserting Lauth’s

Affirmative Defenses as to the claims raised by Plaintiff in the Complaint, Lauth respectfully
prays that Plaintiff TAKE NOTHING by way of its Complaint and for all other relief, including
but not limited to an award of attorney’s fees as against Plaintiff, just and appropriate in the
premise.
DATED: January 3, 2024 SOVICH MINCH, LLP
Fishers, Indiana
/s/ Theodore J. Minch
___________________________________
Theodore J. Minch, Attorney No. 18798-49
10099 Chesapeake Drive
Indianapolis, Indiana 46204
Telephone: (317) 939-1050
Facsimile: (317) 732-7169
Email: tjminch@sovichminch.com
Attorneys for Defendant Lauth Investigations

International, LLC
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was forwarded this day to the following
party representatives of record by placing a copy of the same via this Court’s electronic filing
system, return receipt requested and postage pre-paid, this 3rd day of January , 2024:
Michael A. Swift
Maginot, Moore & Beck LLP
150 W. Market Street, Suite 800
Indianapolis, IN 46204
Email: maswift@maginot.com
/s/Theodore J. Minch
Theodore J. Minch (IN#18798-49)
Attorney for Lauth Investigations
International, LLC
11

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Case 1:23-cv-01678-JPH-MKK Document 21 Filed 01/03/24 Page 1 of 11 PageID #: 91

UNITED STATES DISTRICT COURT

DEFENDANT LAUTH INVESTIGATIONS INTERNATIONAL, LLC’S

paragraphs in Plaintiff’s Complaint as follows:

1. Plaintiff is an individual who is a citizen of the United Kingdom.

JURISDICTION AND VENUE

ANSWER: Lauth ADMITS allegation contained in Paragraph 3 of the Complaint.

ANSWER: Lauth ADMITS allegation contained in Paragraph 4 of the Complaint.

6. Plaintiff has been an independent photojournalist for close to 50 years, capturing

9. A sample of Plaintiff’s work is available for viewing on his professional website

11. Between 1990-1992, Plaintiff created a professional photograph of a homeless

III. Defendant’s Unlawful Activities

15. Defendant is an independent investigation firm whose clientele includes

ANSWER: Lauth ADMITS allegations contained in Paragraph 15 of the Complaint.

17. On August 21, 2019 (after Plaintiff’s above-referenced copyright registration of

ANSWER: Lauth DENIES the allegations contained in Paragraph 17 of the Complaint.

20. Defendant utilized the Work for commercial use.

ANSWER: Lauth DENIES the allegation contained in Paragraph 20 of the Complaint in

ANSWER: Lauth DENIES the allegation contained in Paragraph 21 of the Complaint in

COUNT I – COPYRIGHT INFRINGEMENT

ANSWER: Paragraph 24 of the Complaint requires neither admission nor a denial.

25. The Work is an original work of authorship, embodying copyrightable subject

27. As a result of Plaintiff’s reproduction, distribution, and public display of the

ANSWER: Lauth DENIES the allegations contained in Paragraph 28 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 29 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 29 of the Complaint in

ANSWER: Lauth DENIES the allegation contained in Paragraph 31 of the Complaint in

ANSWER: Lauth DENIES the allegation contained in Paragraph 32 of the Complaint in

33. Alternatively, and at Plaintiff’s election, Plaintiff is entitled to statutory damages

ANSWER: Lauth DENIES the allegations contained in Paragraph 33 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 33 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 35 of the Complaint in

COUNT II – REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION

ANSWER: Paragraph 36 of the Complaint require neither admission nor a denial.

37. As evidenced above, the Work contains copyright management information

ANSWER: Lauth DENIES the allegations contained in Paragraph 38 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 39 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 40 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 41 of the Complaint in

ANSWER: Lauth DENIES the allegations contained in Paragraph 42 of the Complaint in

FIRST AFFIRMATIVE DEFENSE

SECOND AFFIRMATIVE DEFENSE

THIRD AFFIRMATIVE DEFENSE

SIXTH AFFIRMATIVE DEFENSE

SEVENTH AFFIRMATIVE DEFENSE

AFFIRMATIVE DEFENSES UNKNOWN

PRAYER FOR RELIEF

WHEREFORE, having fully answered Plaintiff’s Complaint and asserting Lauth’s

Attorneys for Defendant Lauth Investigations

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