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Case 2:19-cv-10251 Document 1 Filed 12/03/19 Page 1 of 10 Page ID #:1

1 Steven C. Vondran, [SBN 232337]


THE LAW OFFICES OF STEVEN C. VONDRAN, PC
2 620 Newport Center Drive, Suite 1100
3
Newport Beach, CA 92660
Telephone: (877) 276-5084
4 Facsimile: (888) 551-2252
E-mail: steve@vondranlegal.com
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Attorney for Plaintiff: Dr. Elliot McGucken
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UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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10 DR. ELLIOT MCGUCKEN, an individual,
Case No.
11 Plaintiff,
12 vs. COMPLAINT FOR DAMAGES
AND INJUNCTIVE RELIEF FOR
13 VACATION RENTAL IN MAMMOTH, WILLFUL COPYRIGHT
un Unknown Entity, and KENNETH JOHN INFRINGEMENT
14 RHODE, an Individual, and DOES 1-25
inclusive.
15 DEMAND FOR A JURY TRIAL
Defendant(s)
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COMES NOW Dr. Elliot McGucken (“Plaintiff”), hereby alleging as follows:
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JURISDICTION AND VENUE
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1. This is a civil action seeking damages and injunctive relief for copyright
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infringement under the Copyright Act of the United States, 17 U.S.C. §101 et seq.
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2. This Court has subject matter jurisdiction over Plaintiff’s claims for
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copyright infringement pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C.§
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1338 (jurisdiction over copyright actions).
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1 3. This Court has personal jurisdiction over Defendants because Defendants
2 have targeted and caused damage in this jurisdiction and the brunt of the infringement
3 injury is and was directed toward this jurisdiction and can be felt in this jurisdiction.
4 Defendants purposely avail themselves of the protections of this jurisdiction by running,
5 operating and advertising their business directed toward California individuals including
6 those located within this jurisdiction.
7 4. Venue in this judicial district is proper under 28 U.S.C. §1391 et seq. and in
8 that this is the judicial district in which a substantial part of the acts and/or omissions
9 giving rise to the claims are believed to have occurred and where personal jurisdiction
10 otherwise exists as Defendants activities injured Plaintiff in this jurisdiction.
T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

11 PARTIES
12 5. Plaintiff Dr. Elliot McGucken (“McGucken or “Plaintiff”) is a professional
Newport Beach, California 92660
620 Newport Ctr., Suite 1100

13 photographer and author residing in Los Angeles, California. He does not sell his images
14 on stock art websites. He has sold his art for as high as $8,000 and his work has appeared
15 on the cover of Nikon magazine and in other publications. He routinely provides art to
16 U.C.L.A. medical. He also sells photography books which can be found on
17 Amazon.com. His art and entrepreneurship course have also been reported in the New
18 York Times.
19 6. Defendant VACATION RENTAL IN MAMMOTH, (“Defendant” and/or
20 “Defendants” and/or “VRIM”) has infringed Plaintiff’s copyrights causing damage in
21 this jurisdiction and have purposefully availed themselves of the protections of this
22 jurisdiction. Defendant is believed to be a commercial business entity of unknown type.
23 7. On information and belief, Defendant KENNETH JOHN RHODE is
24 believed to be an officer and/or director of VRIM with both a financial interest in the
25 use and infringement of the unlicensed photography used on his website, and also had
26 the ability to control, supervise and/or had the ability to prevent any infringement, but
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1 did not do so for his own personal financial gain.
2 8. Plaintiff is unaware of the true names and capacities of the Defendants sued
3 herein as DOES 1 through 25, inclusive, and for that reason, sues such Defendants under
4 such fictitious names. Plaintiff is informed and believes and, on that basis, alleges that
5 such fictitiously named Defendants are responsible in some manner for the occurrences
6 herein alleged, and that Plaintiff’s damages as herein alleged were proximately caused
7 by the conduct of said Defendants. Plaintiff will seek to amend the complaint when the
8 names and capacities of such fictitiously named Defendants are ascertained. As alleged
9 herein, “Defendant” shall mean all named Defendants, and all fictitiously named
10 Defendants.
T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

11 9. For purposes of this Complaint, unless otherwise indicated, “Defendant”


12 includes all agents, employees’ officers, members, directors, heirs, successors, assigns,
Newport Beach, California 92660
620 Newport Ctr., Suite 1100

13 principals, trustees, sureties, subrogates, representatives and, insurers of Defendants


14 named in this caption.
15 FACTUAL ALLEGATIONS
16 10. Plaintiff incorporates and re-alleges the allegations above as if alleged
17 herein.
18 11. Plaintiff is a fine art photographer, author and has a PhD in physics. He
19 does not sell his photographs via “stock images” websites (like Getty or iStockPhoto)
20 and instead is in the business of building a fine art brand with exquisite photography that
21 are subject to widespread infringement requiring an ongoing enforcement effort.
22 12. Much time and financial risk goes into each shoot including photography
23 and equipment expense, travel costs and other costs.
24 13. Many persons incorrectly believe they can download and use his images,
25 without authorization for their own personal and commercial uses without paying for the
26 proper license. Defendants have not paid for a license and had no consent to use any of
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1 Plaintiff’s photos.
2 14. Plaintiff is the sole author and rights holder to the original photograph(s)
3 that were willfully infringed by Defendant(s) (the “Image(s)” and/or “Work(s)”), a true
4 and correct copy of the United States Copyright Registration is attached hereto as
5 Exhibit “A” registration number VA002111295. The Court thus has subject matter
6 jurisdiction to hear this claim.
7 15. Defendants have unlawfully copied and/or reproduced and/or publicly
8 displayed Plaintiff’s Image(s), without consent or authorization and done so
9 COMMERCIALLY capitalizing of Plaintiff’s copyrighted Work(s).
10 16. Plaintiff discovered the Image being used on Defendant’s Website and
T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

11 demanded that the photo(s)/images be taken down and any proof of licensing be
12 provided (See Exhibit “B” the original demand that was sent on or around 12/03/18).
Newport Beach, California 92660
620 Newport Ctr., Suite 1100

13 17. Defendant responded on or around March 8, 2019, claiming he took the


14 image down but provided no proof that Plaintiff ever authorized the Defendant(s) to use
15 the Image(s) and/ Works(s) in any manner whatsoever, and no license is known to exist.
16 18. On information and belief, the Defendants knew they did not have
17 permission to use the Image on the Website for commercial purposes, and willfully
18 infringed Plaintiff’s Image by consciously failing to obtain a proper commercial license
19 and in reckless disregard of the rights of the photographer.
20 19. Thereafter, it was later learned that Defendant continued to use the
21 Image/Work on their website, for commercial purposes as can be seen in Exhibit “C.”
22 This continued willful use in the face of a prior copyright infringement notice constitutes
23 malicious and willful infringement wherefore Plaintiff seeks the maximum penalties
24 allowed by law.
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1 FIRST CAUSE OF ACTION
COPYRIGHT INFRINGEMENT
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[Against All Defendants]
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20. Plaintiff incorporates and re-alleges all of the above paragraphs of this
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Complaint and all Exhibits as though fully stated herein.
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21. Plaintiff is informed and believes and thereon alleges that the Defendants
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willfully violated the exclusive rights of Plaintiff’s original copyrighted Work and
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infringed upon Plaintiff’s copyrighted Image in violation of Title 17 of the U.S. Code, in
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that it used, published, communicated, posted (publicly displayed), distributed, and/or
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otherwise held out to the public for commercial benefit, the original and unique Image
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T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

of the Plaintiff without Plaintiff’s consent or authority, without a paid license, and by
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using it in the Infringing manner on Defendant’s Website for their own commercial
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purposes.
Newport Beach, California 92660
620 Newport Ctr., Suite 1100

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22. There is no “fair use” of Plaintiff’s work which is an original work of
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authorship.
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23. Plaintiff did not consent to, authorize, permit, agree, or allow in any manner
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Defendant’s said use and continued use of Plaintiff’s unique and original Image
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including for any reproduction, distribution, public display or any other violation of his
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Exclusive rights as a registered copyright holder.
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24. Defendants were aware that they were violating the law as noticed by
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receiving the initial demand letter, and then and thereafter, intentionally infringing the
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copyright of Plaintiff with absolutely no regard to his federally registered copyright.
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25. Defendants are presumed to know the law, and thus presumed to know the
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Images were copyrighted and were on actual and constructive notice of their
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infringement and recklessly disregarded Plaintiff’s rights.
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26. Defendants did not seek any license or permission to obtain or use the photo
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Images which are copies, reproductions and substantially similar to Plaintiff’s
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1 copyrighted work to which Defendants had access to, and did access and misappropriate
2 for their own commercial benefit.
3 27. Defendants acts and omissions thus willfully violated Plaintiff’s exclusive
4 rights to his Copyrights including the:
5 (a) the exclusive right to reproduce its Works in Copies in violation of 17 U.S.C.
6 §106(1) and §501
7 (b) ) the exclusive right to distribute copies of the Works to the public in violation
8 of 17 U.S.C. §106(3) and §501
9 (c) ) the exclusive right to publicly display the copyrighted Works in violation of
10 17 U.S.C. §106(5) and §105 by showing (copying) individual images of the Works.
T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

11 (d) has violated Plaintiff’s moral rights in his Works/Images.


12 28. Thus, they intentionally infringed, and acted in complete disregard of
Newport Beach, California 92660
620 Newport Ctr., Suite 1100

13 Plaintiff’s exclusive rights which, by law, Defendants are presumed to know and must
14 follow.
15 29. Defendants committed infringements “willfully” within the meaning of 17
16 U.S.C. §504(c)2 because they were made aware of the infringement and disregarded it,
17 30. As a result of Defendants willful violations of Title 17 of the U.S. Code,
18 Plaintiff is entitled, at his election, to any actual damages pursuant to 17 U.S.C. §504(b),
19 or statutory damages in an amount from $30,000 up to $150,000.00 per willful
20 infringement pursuant to 17 U.S.C§ 504(c).
21 31. As a result of the Defendants’ violations of Title 17 of the U.S. Code, the
22 court in its discretion may allow the recovery of full costs as well as reasonable attorney’s
23 fees and costs pursuant to 17 U.S.C § 505 and Plaintiff hereby seeks costs and reasonable
24 attorney fees.
25 32. Plaintiff is also entitled to injunctive relief to prevent or restrain
26 infringement of his copyright pursuant to 17 U.S.C. § 502 to prevent Defendant and/or
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1 their agents, representatives, successors, assigns, contractors and others from engaging
2 in future acts of infringement of Plaintiff’s valuable copyrighted works.
3 33. Plaintiff obtained a Default Judgment of $120,000 in another case.
4 PRAYER FOR RELIEF
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WHEREFORE, Plaintiff prays for judgment against Defendants, and each of
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them, as follows:
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• For an award of actual damages and disgorgement of all of Defendants profits
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attributable to the infringement as provided by 17 U.S.C. §504 in an amount to be proven
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at trial, or, in the alternative, at Plaintiff’s election, an award for statutory damages
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T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

against Defendants in an amount from $30,000 up to $150,000.00 for each willful


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infringement pursuant to 17 U.S.C. §504(c), whichever is larger;
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• For an order pursuant to 17 U.S.C. §502(a) enjoining Defendants and their
Newport Beach, California 92660
620 Newport Ctr., Suite 1100

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agents, representatives, employees and successors and assigns from any further
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infringing use of any of Plaintiff’s Image(s); (See requested language below)
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• For costs of litigation and reasonable attorney’s fees against Defendants
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pursuant to 17 U.S.C. §505;
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• For an award of pre- and post-judgment interest; and
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• For any other relief the Court deems just and proper.
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• Plaintiff hereby demands a jury trial
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INJUNCTION REQUESTED
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Defendants are and will suffer irreparable harm if Defendant is allowed to continue to
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infringe Plaintiff’s copyrights Work(s) by continuing to use, post, copy or distribute any
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Work(s) of Plaintiff as identified herein. WHEREFORE:
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1 The Court should ORDER:
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1. Defendants, and each of them, shall be, and hereby are, TEMPORARILY AND
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4 PERMANENTLY ENJOINED from directly or indirectly infringing Plaintiff’s

5 copyrighted Work(s) as shown herein.


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2. This injunction shall apply to any employee, contractor, agent, representative,
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8 parent company, subsidiary, successor, assign or affiliate of Defendant including

9 without limitation any use of the Internet or any online media distribution system
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T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

to copy or reproduce (i.e. download, upload, record or copy), to distribute (i.e.


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12 upload), or to make any of the Works available for distribution to the public,
Newport Beach, California 92660
620 Newport Ctr., Suite 1100

13 except pursuant to a lawful license or with the express authority of the Copyright
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holder-Plaintiff.
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16 3. Defendants shall destroy all copies of Plaintiffs Work(s) in their possession and/or
17 control (whether existing in digital format, online, physically offline or otherwise)
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from any and all hard drives, servers, electronic storage devices, web servers, or
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20 other devices that may exist and provide proof of destruction to Plaintiff in the
21 form of a video tape showing the destruction.
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1 4. Defendants shall provide notice of Compliance with this injunction to Plaintiff
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within 30 days of the Court Order and submit proof to the Court.
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5 IT IS ORDERED:
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7 _______________________________________
8 UNITED STATES DISTRICT COURT JUDGE

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T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

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Newport Beach, California 92660
620 Newport Ctr., Suite 1100

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Case 2:19-cv-10251 Document 1 Filed 12/03/19 Page 10 of 10 Page ID #:10

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1 THE FOREGOING HEREBY RESPECTFULLY SUBMITTED,
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3 DATED: December 3, 2019 THE LAW OFFICES OF STEVEN C.
4
VONDRAN, P.C.

5
6 By: /s/ Steven C. Vondran, Esq.
Steven C. Vondran, [SBN 232337]
7 ATTORNEY FOR PLAINTIFF
DR. ELLIOT MCGUCKEN
8 620 Newport Center Drive, Suite 1100
9 Newport Beach, CA 92660
Telephone: (877) 276-5084
10 Facsimile: (888) 551-2252
T HE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

E-mail: steve@vondranlegal.com
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Newport Beach, California 92660
620 Newport Ctr., Suite 1100

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