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Kurt M. Rylander, OSB No. 94427
rylander@rylanderlaw.com
4 Mark E. Beatty, OSB No. 092603
beatty@tylanderlaw.com
RYLANDER & ASSOCIATES PC
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406 West 12th Street
Vancouver, WA 98660
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Tel: 360.750.9931
Fax: 360.397.0473
8 Attorneys for Plaintiff
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
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DANGER NINJA PRODUCTIONS,
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a dba of DANIEL HOYT, and
DANIEL HOYT, an individual,
Plaintiff(s),
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THE ESTEE LAUDER
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COMPANIES, INC., dba MAC
COSMETICS, a Delaware
corporation;
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MAKE-UP ART COSMETICS, INC.
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dba MAC COSMETICS, a Delaware
corporation; and
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M.A.C. COSMETICS, INC., a
24 Delaware corporation,
_________Defendant(s).
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COMES NOW Plaintiff, DANGER
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PK
COMPLAINT
For Copyright Infringement,
Copyright Misattribution, DMCA
Violation, Unfair Trade Practices,
and Equitable Relief
JURY TRIAL DEMANDED
NINJA PRODUCTIONS and
DANIEL HOYT, and by this Complaint seeks money damages and equitable
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1- COMPLAINT FOR RELIEF
l1i2!2011 4;53;14 PM Hom 001
JD
RYLANDER
& ASSOClATES PC
" . 4<l6 W.eu 12th Str"cC
Vatu:ou..-"t. W>\. 9&.6iSO ,
(360) 11()99;t;
Case3:11cv01321PKDocument1Filed11/03/11Page1of17PageID#:1
"
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relief against Defendants THE ESTEE LAUDER COMPANIES, INC., :MAKE-
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4 UP-COSMETICS, INC., and M.A.C. COSMETICS, INC. for: (1) copyright
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infringement; (2) copyright misattribution; (3) violation of the Digital
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Millennium Copyright Act of 1998 (DMCA); and (4) violation of Oregon's Unfair
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Trade Practices Act; and alleges as follows:
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JURISDICTION AND VENUE
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1. This Court has subject matter jurisdiction over this action This
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12 Court has Federal Question jurisdiction over this action pursuant to 28 U.S. C.
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1331 and 1338 as an action arising under the laws of the United States,
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including Title 17 of the United States Code relating to copyrights.
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2. This Court has pendent jurisdiction over the state claims under 28
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U.S.C. 1338(b) in that said claims are joined with substantial and related
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claims under the Copyright Laws of the United States, Title 17 United States
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Code. This Court also has supplemental jurisdiction pursuant to 28 U.S.C.
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20 1367. Pursuant to Rule 9(c), Plaintiff pleads that all acts and conditions
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precedent for establishing jurisdiction have been performed or have occurred.
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3. Venue and personal jurisdiction are proper in this district
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pursuant to 28 U.S.C. 1400, 28 U.S.C. 1391(b) and (c), and, pursuant to
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FRCP 4, Oregon's long arm jurisdictional rules ORCP 4A, 4C, 4D, and or 4L in
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that Plaintiff is informed and believes and on that basis alleges that
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Defendant(s) reside in this district and/or can be found in this district by virtue
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2- COMPLAINT FOR RELIEF
111212011 4:53:14 PM HOYD.OOI
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,
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of their activities, are engaged in substantial and not isolated activities in this
4 district, and engaged in acts in this district and/or injured persons in this
district in conjunction with activities carried on within this district by
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Defendants and/or in the ordinary course of trade of Defendants.
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4. Plaintiff is informed and believes and on that basis alleges that
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this Court has personal jurisdiction over Defendants by virtue of Defendants
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transacting and doing business in this judicial district.
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12 PARTIES
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5. Danger Ninja Productions. Plaintiff, DANIEL HOYT is a
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professional photographer operating under the sole proprietorship name of
DANGER NINJA PRODUCTIONS, with principal place of business III
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Portland, Oregon.
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6. M.A.C. Cosmetics, Inc. Plaintiff is informed and believes and on
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that basis alleges that Defendant M.A. C. Cosmetics, Inc. is a Delaware
corporation and a wholly owned subsidiary of Make-Up Art Cosmetics, Inc.,
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conducting business in the State of Oregon, registered as a foreign corporation
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in Oregon, and by such extensive conduct, residing in the State of Oregon.
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7. Make-up Art Cosmetics, Inc. Plaintiff is informed and believes
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and on that basis alleges that Defendant Make-Up Art Cosmetics, Inc. is a
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Delaware corporation and a wholly owned subsidiary of The Estee Lauder
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Companies, Inc., conducting business in the State of Oregon, registered as a
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3- COMPLAINT FOR RELIEF
lll2l20ll 4,53, l4 PM HOYD.OOl
m
RYLANDER
_. . & ASSOCIATES PC
" -106 West 12!h SU-e"t
WA 9S66D
(360) 7S0-9931
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3 foreign corporation in Oregon, and by such extensive conduct, residing in the
4 State of Oregon.
8. The Estee Lauder Companies, Inc. Plaintiff is informed and
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believes and on that basis alleges that Defendant The Estee Lauder
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Companies, Inc. is a Delaware corporation conducting business in the State of
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Oregon, and by such extensive conduct, residing in the State of Oregon, and
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further that The Estee Lauder Companies, Inc. wholly owns, dominates, and
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controls all activities and actions of Defendants Make-Up Art Cosmetics, Inc.,
12 and M.A.C. Cosmetics, Inc. and that the Defendants share in-house corporate
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counsel and legal strategies, plans and knowledge.
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9. The website www.maccosmetics.com was registered and
maintained by The Estee Lauder Companies, Inc.
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10. The website www.macmeover.com was registered by William
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Jelinek of Make-Up Art Cosmetics, Inc. The administrative contact is William
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Jelinek of Make-Up Art Cosmetics, Inc. His e-mail was listed as a root
"estee.com" e-mail. The technical contact was listed as Ken Gunther of Estee
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Lauder, Inc. Plaintiff is informed and believes that William Jelinek, despite
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holding himself out as a an authorized individual of Make-Up Art Cosmetics,
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Inc., is actually an employee and assistant general counsel of Estee Lauder.
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11. Plaintiff is informed and believes and on that basis alleges that
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Defendants are commonly owned and/or managed and have overlapping officers
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and/or overlapping general counsels.
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4- COMPLAINT FOR RELIEF
11/2120114,53,14 PM HOYD.OOI
IB
RYLANDER
_ & ASSOCIATES PC
. _ ..106 Weill L2th Street
Vancou..-er, WA 98660
(360) 7."lO.99]!
Case3:11cv01321PKDocument1Filed11/03/11Page4of17PageID#:4
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12. Hereinafter, MAC Cosmetics, Inc., Make-up Art Cosmetics, Inc.,
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4 and The Estee Lauder Companies, Inc. will be referred to as "Defendants" or
"Estee Lauder Defendants".
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COMMON ALLEGATIONS OF FACT
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13. Plaintiff is a commercial professional photographer. In 2010,
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Plaintiff created the work titled DRIPPING BLACK. The work is a visually
shocking and stunning visual work of art that immediately grabs the viewers'
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12 attention.
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14. Plaintiff was and is the sole owner of his copyrighted work
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DRIPPING BLACK, a true and correct black and white photocopy of which is
attached hereto as Exhibit "A" and incorporated herein by reference.
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15. Plaintiffs copyrighted work has been registered by the Library of
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Congress, Copyright Registration No. VA0001790744 (hereinafter the
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19 "Copyrighted Work").
16. Plaintiffs copyright registration is prima facie evidence of the
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17. Plaintiff incorporated copyright management information ("CMI")
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into all accessible digital copies of the Copyrighted Work. The CMI is displayed
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with digital copies and prints out to be visible on hard copies.
18. Plaintiff is informed and believes and on that basis alleges that
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Defendants used and/or use Plaintiffs copyrighted photograph(s) to: promote,
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5- COMPLAINT FOR RELIEF
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3 advertise, and/or sell goods and/or serVIces In Oregon, and has shipped
4 products including unauthorized copies of the Copyrighted Work to one or more
purchasers and/or locations in Oregon.
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19. Plaintiff is informed and believes, and on that basis alleges, that
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Defendants copied, published and publicly displayed the Copyrighted Work,
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and/or unauthorized derivative works created from the Copyrighted Work, in
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Oregon, and throughout the United States and internationally, in store
displays, magazines, catalogues, brochures, and/or via the internet. Plaintiff is
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12 informed and believes and on that basis alleges that a true and correct black
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and white photocopy of one of Defendants' unlawful and violative displays used
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in the MAC Me Over campaign by Defendants at one of Defendants' stores in
Oregon is attached hereto as Exhibit "B" and incorporated herein by reference
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20. Plaintiff is informed and believes and on that basis alleges that
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Defendant(s) acquired one or more digital copies of the Copyrighted Work
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without Plaintiffs consent, that those digital copies included Plaintiffs CMI,
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and that Defendant(s) removed or altered the CMI to display the Copyrighted
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Work without the CMI in Defendant(s) national advertising campaign(s); and
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that Defendant(s) further failed to attribute Plaintiffs work to Plaintiff in those
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campaign(s). Plaintiff is informed and believes, and on that basis alleges, that
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. Defendants' actions were purposeful, knowing, and intentional and in absolute
derogation of Plaintiffs rights.
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21. Plaintiff is informed and believes and on that basis alleges that
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m
RYLANDER
_ . & ASSOCIATES PC
6- COMPLAINT FOR RELIEF
..l06 WCH 12th Str.ec,
1!I2f2011 4:53:14 PM HOWODI " Vur";:m.. ",,r, WA 9"8660
(360) 750-9931
Case3:11cv01321PKDocument1Filed11/03/11Page6of17PageID#:6
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Defendants used Plaintiffs copyrighted work, without permission, in national
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4 advertising campaigns, including in stores located in Oregon, to sell
Defendants' goods and/or services, and did not attribute that work to Plaintiff,
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and instead altered and removed attribution to Plaintiff.
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22. Plaintiff is informed and believes and on that basis alleges that
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Defendants used Plaintiffs copyrighted work, without permission, in national
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advertising campaigns, including in stores located in Oregon, to sell
Defendants' goods and/or services, and in so doing, removed Plaintiffs eMI by
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12 which Plaintiff controls use and attribution of Plaintiffs copyrighted work.
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23. Plaintiff is informed and believes and on that basis alleges that
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Defendants are sophisticated users of copyrighted visual works of art, that
Defendants' employ and/or contract with photographers and models on a
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regular basis, and that Defendants are sophisticated and knowledgeable
regarding copyright law and the rights of authors and models.
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24. Plaintiff is entitled to compensation to the extent possible for
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damages, general and special, consequential, and incidental, in an amount to
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be proven at trial, for the harm caused by Defendant, and for attorneys' fees,
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costs, and pre- and post-judgment interest.
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25. Plaintiff has suffered and likely will suffer immediate irreparable
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damage and ongoing harm by reasons of Defendants' unlawful acts unless
Defendants are restrained and enjoined, and Plaintiff is without adequate
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remedy at law.
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m
RYLANDER
7- COMPLAINT FOR RELIEF
. & ASSOCIATES PC
< -106 \\'cst 12lb
1112120114:53:14 PM HOYD.OOI Vancou\'cr, WA 98660
(360) ;.50-9931
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26. Defendants' unlawful activities caused, and likely will continue to
4 cause, irreparable harm to Plaintiff, which cannot be fully compensated by
money damages.
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27. The public has an overriding interest in avoiding unlawful copying
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of the work of artists and in the enforcement of copyright and trade practices
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laws, and in the proper attribution of source and association for goods and
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services in commerce, and in maintaining the integrity of CMI systems
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28. Accordingly, Plaintiff demands an amount of money damages to
12 compensate the Plaintiff for the harm caused, including but not limited to
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Defendants' profits, statutory and/or punitive' damages, as well as equitable
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relief, attorneys' fees, costs, and interest.
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FIRST CLAIM FOR RELIEF--COPYRIGHT INFRINGEMENT
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29. Plaintiff re-alleges every paragraph in this Complaint.
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30. Plaintiff is informed and believes and on that basis alleges that by
its aforesaid conduct Defendants willfully infringed Plaintiffs copyrighted
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works; that Defendants' actions willfully and for profit violated exclusive rights
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of the Copyright Laws of the United States; that Plaintiff owned valid copyright
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on works which Defendants violated in acts of improper appropriation.
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31. Accordingly, Defendants are liable to Plaintiff for actual damages,
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including Defendants' profits, and Defendants should be enjoined to remove
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and destroy all infringing displays, and enjoined to post prominently, in all
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8--- COMPLAINT FOR RELIEF
1112/20114:53:14 PM HOYD.OOI
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stores and other locations where the infringing work appeared, attribution to
Plaintiff as the author and copyright owner of the work DRIPPING BLACK for
a period of no less than one year.
SECOND CLAIlYI FOR RELIEF--COPYRIGHT MISATTRIBUTION
32. Plaintiff re-alleges every paragraph in this Complaint.
33. Defendants altered and removed attribution of Plaintiffs
copyrighted work in its infringing articles, and are liable therefore pursuant to
Section 106A of the Copyright Act for false attribution.
34. Accordingly, Defendants are liable to Plaintiff for actual damages,
including Defendants' profits, and Defendants should be enjoined to remove
and destroy all misattributing displays, and enjoined to post prominently, in all
stores and other locations where the misattributing work appeared, attribution
to Plaintiff as the author copyright owner of the work DRIPPING BLACK for a
period of no less than one year..
THIRD CLAIM FOR RELIEF--DMCA VIOLATION
35. Plaintiff re-alleges every paragraph in this Complaint.
36. Plaintiff marked his Copyrighted Work with "copyright
management information" (CMI) within the meaning of 17 U.S.C. 1202.
37. Plaintiff is informed and believes and on that basis alleges that
Defendants violated the Digital Millennium Copyright Protection Act of 1998,
W
RYLANDER
9--- COMPLAINT FOR RELIEF
, & ASSOCIATES PC
rj\\, ..lO6 WelJl 12th Street
111212011 4:5H4 PM HOYD.OOI
WA 98660
(.360) 7!iO-993I
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17 U.S.C. 1201 et seq. by improperly, without consent of Plaintiff, removing
4 or altering the CMI, and/or distributing, publishing or publicly displaying
copies of Plaintiffs Copyrighted Work, knowing that CMI had been altered or
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removed without permission of the copyright owner or law.
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38. Pursuant to 17 U.S.C. 1203, Defendants are liable to Plaintiff for
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damages, including:
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a. Actual damages suffered by Plaintiff;
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b. Disgorgement of Defendants' Profits, including any and all
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from use of Plaintiffs copyrighted work; and/or,
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c. Statutory damages, at Plaintiffs election, for each violation
of Section 1202, in the sum of not less than $2,500 or more than
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$25,000, each use by Defendants of Plaintiffs Copyrighted Work,
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as altered by Defendants, constituting a separate and distinct
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violation of Section 1202.
39. Pursuant to 17 U.S.C. 1203, Defendants should be enjoined to
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remove and destroy all infringing displays, and enjoined to post prominently, in
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all stores and other locations where the infringing work appea.red, attribution
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to Plaintiff as the author and copyright owner of the work DRIPPING BLACK
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for a period of no less than one year.
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40. Pursuant to 17 U.S.C. 1203, Defendants are liable to Plaintiff for
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attorneys' fees and costs, including the cost of expert witnesses, and interest on
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10- COMPLAINT FOR RELIEF
111212011 4:63:14 PM HOYD.OOI
_ ' & ASSOCIATES PC
m
RYLANDER
.106 West 12th Street
I Vancouver, WA 98660
(360) ;'0-9931
Case3:11cv01321PKDocument1Filed11/03/11Page10of17PageID#:10
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all claims.
FOURTH CLAIM FOR RELIEF-UNF... L\lR TRADE PRACTICES
41. Plaintiff re-alleges every paragraph in this Complaint.
42. Plaintiff is informed and believes and on that basis alleges that
Defendant, by its aforesaid conduct, committed unfair trade practices in
violation of ORS 646.605 et seq., that Defendants willfully engaged in practices
and acts that cause likelihood of confusion or of misunderstanding as to the
source, sponsorship, approval, or certification of Defendants' goods or services
and/or as to affiliation, connection, or association with, or certification by,
Plaintiff and/or Plaintiffs products and/or that represent Defendants' goods to
have sponsorship or approval that they do not have or a status, qualification,
affiliation, or connection that Defendants do not have.
43. Plaintiff is informed and believes and on that basis alleges that
Defendants' unlawful acts were and are knowing, willful, and malicious.
44. Plaintiff is entitled to compensation to the extent possible III
damages, general and special, consequential, and incidental, in an amount to
be proven at trial, for the harm caused by Defendant, and for attorneys'
costs, and pre- and post-judgment interest.
45. Plaintiff has and will suffer immediate irreparable damage and
ongoing harm to its business, reputation, and goodwill by reasons of
Defendants' unlawful acts unless Defendants are restrained and enjoined, and
11- COMPLAINT FOR RELIEF
111212011 4:53:14 PM HOYD.OOl
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3 Plaintiff is without adequate remedy at law.
4 46. Accordingly, Plaintiff demands an amount of money damages to
compensate the Plaintiff for the harm caused, including but not limited to
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Defendant's profits, statutory and/or punitive damages, as well as equitable
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relief, attorneys' fees, costs, and interest.
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DEMAND FOR JUDGMENT & PRAYER FOR RELIEF
WHEREFORE Plaintiff prays for judgment against the Defendants as
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12 follows:
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(a) Granting judgment in favor of Plaintiff against Defendants on all
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claims;
(b) Awarding actual, general and specific, consequential and
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incidental, damages against Defendants, jointly and severally, in an amount to
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be determined at trial;
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(c) Awarding Plaintiff exemplary, statutory, treble damages against
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Defendants, jointly and severally;
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(d) Adjudging Defendants liable under United States copyright laws
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to Plaintiff for statutory, and or actual damages and disgorgement of
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Defendants' profits, at the election of Plaintiff:
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(1) For Plaintiff and against Defendants for actual damages
and/or Defendants' profits from Defendants' acts of
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12- COMPLAINT FOR RELIEF
11I2!'2011 4:53: 14 PM HOYD.OOl
RYLANDER
& ASSOCIATES PC
.lOti West 12th SU,,"'t
Vanco"':er. WI\. 98660
(3UO) 7S0-9?) i
Case3:11cv01321PKDocument1Filed11/03/11Page12of17PageID#:12
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infringement, pursuant to the Copyright Act of 1976, 17 U.s.C.
101 et seq.;
(2) For Plaintiff and against Defendants for actual damages
and/or Defendants' profits from Defendants' acts of
misattribution, pursuant to the Copyright Act of 1976, 17
U.s.C. 101 et and
(3) For Plaintiff and against Defendants for statutory damages
and/or actual damages and/or profits, from Defendants'
violation of the Digital Millennium Copyright Act of 1998, at
the election of Plaintiff;
(e) Enjoining Defendants to account for all gams and advantages
derived from its acts of infringement and for its other violations of law, and in
disgorgement, reduce all such gains and advantages to money judgment in
favor of Plaintiff;
(f) Enjoining Defendants to identify all locations wherein Defendants
displayed Plaintiffs copyrighted work, and the number displays containing
Plaintiffs copyright work at each such location;
(g) Enjoining Defendants to post prominently inside the front doors of
each such location a notice properly attributing Plaintiff as the author of the
work DRIPPING BLACK for a period not less than one year; such prominence
to be equally as prominent as Defendants original displays containing
Plaintiffs work;
m
RYIANDER
13- COMPLAINT FOR RELIEF
_" & ASSOCIATES PC
.,106 \Vellt 12th Street
11/212011-1:53:14 pr.,t HOYD.rn:n VanCQ..... <::f, WA
(360) 750-9931
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(h) Enjoining Defendants to identify the location and content of any
and all production facilities, stores, inventories, stockpiles or distribution
centers containing infringing articles of which it has knowledge, including
products, accessories, designs, logos, prints, electronic files, and any other
things, of which Defendants has knowledge, whether owned or controlled by
Defendants or any other party, at which any infringing, misappropriating,
misattributing works violative of Plaintiffs rights may be found;
(i) Ordering impoundment, destruction and verification of such
destruction, of any things identified in the preceding paragraph;
Awarding Plaintiffs its reasonable attorneys' fees and costs,
including costs for experts, pursuant to State and Federal law;
(k) Awarding Pre- and post- judgment interest; and
(1) Entering such other and further relief as the Court deems
appropriate under the circumstances.
Plaintiff hereby demands trial by jury i
DATED , 112/0
14- COMPLAINT FOR RELIEF
1112/2011 2:5N7 PM HOYIJ.OOl
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o

RYLANDER & ASSOCIATES PC
P.O. Box 250
Vancouver, W A 98666
Tel: (360) 750-9931
Fax: (360) 397-0473
Of Attorneys for Plaintiff
15- COMPLAINT FOR RELIEF
11l2!2011 2:5<1"47 PM HOYD.OOI
Case3:11cv01321PKDocument1Filed11/03/11Page15of17PageID#:15
EXHIBIT A
TO COMPAINT FOR RELIEF
Danger Ninja Productions v. Estee Lauder et al.
Case3:11cv01321PKDocument1Filed11/03/11Page16of17PageID#:16
EXHIBIT B
TO COMPAINT FOR RELIEF
Danger Ninja Productions v. Estee Lauder et al.
Case3:11cv01321PKDocument1Filed11/03/11Page17of17PageID#:17