righthaven v pajamas media complaint

8/7/2019 Righthaven v Pajamas Media Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.:_________________________

RIGHTHAVEN LLC, a Nevada limited-liability company,

Plaintiff,

v.

PAJAMAS MEDIA, INC., a California corporation; and

BRYAN PRESTON, an individual,

Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

Righthaven LLC (Righthaven) complains as follows against Pajamas Media, Inc.

(Pajamas Media), and Bryan Preston (Mr. Preston; collectively with Pajamas Media known

herein as the Defendants), on information and belief:

NATURE OF ACTION

1. This is an action for copyright infringement pursuant to 17 U.S.C. 501.

PARTIES

2. Righthaven is, and has been at all times relevant to this lawsuit, a Nevada limited-liability company with its principal place of business in Nevada.

3. Righthaven is, and has been at all times relevant to this lawsuit, in good standingwith the Nevada Secretary of State.

Case 1:11-cv-00240-CMA Document 1 Filed 01/28/11 USDC Colorado Page 1 of 7


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4. Pajamas Media is, and has been at all times relevant to this lawsuit, a Californiacorporation.

5. Pajamas Media is, and has been at all times relevant to this lawsuit, identified bythe current registrar, GoDaddy.com, Inc. (GoDaddy), as the registrant of the Internet domain

found at (the Domain).

6. Pajamas Media is, and has been at all times relevant to this lawsuit, identified byGoDaddy as the administrative and technical contact of the Domain (the content accessible

through the Domain and the Domain itself known herein as the Website).

7. Pajamas Media is, and has been at all times relevant to this lawsuit, the self-proclaimed owner of the copyright(s) in the work(s) displayed on the Website, as evidenced by a

copyright notice on the Website: Copyright 2005-2011 Pajamas Media All Rights Reserved.

8. Mr. Preston is, and has been at all times relevant to this lawsuit, identified byPajamas Media as the Austin editor, a columnist and contributor of Pajamas Media, as evidenced

by the Website.

9. Mr. Preston reproduced an unauthorized copy of the Righthaven-ownedphotograph entitled: TSA Agent performs enhanced pat-downs (the Work), attached hereto

as Exhibit 1, and displayed said unauthorized copy (the Infringement), attached hereto as

Exhibit 2, on the Website.

JURISDICTION

10. This Court has jurisdiction over the subject matter and the parties under thecopyright laws of the United States, 17 U.S.C. 101 et seq., as well as jurisdictional provisions

of 28 U.S.C. 1331 and 28 U.S.C. 1338(a).

11. Righthaven is the owner of the copyright in and to the Work.



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12. On or about November 19, 2010, Mr. Preston willfully infringed uponRighthavens copyright, by reproducing the Work on an unauthorized basis, from a source

emanating from Colorado.

13. On or about November 19, 2010, the Defendants displayed, and continue todisplay, the Infringement on the Website.

14. The composition, at least in part, of the Work and the Infringement, is aTransportation Security Administration Agent performing an enhanced pat-down search in the

Denver, Colorado airport.

15. The focal point of the Infringement is Denver, Colorado.16. The only geographic location that is associated with, and related to, the Work is

Denver, Colorado.

17. The Work was originally published in The Denver Post.18. The Defendants knew that the Work was originally published in The Denver Post.19. The Defendants knew that the Work originally emanated from Colorado.20. At all times relevant to this lawsuit, the Infringement, as publically displayed on

the Website, was and is accessible to persons in Colorado.

21. At all times relevant to this lawsuit, the Infringement occurred and continues tooccur in Colorado.

22. The Defendants display of the Infringement was and is purposefully directed atColorado residents.

23. The harm caused by the Infringement, was experienced, at least in part, inColorado.

/ / /

/ / /

/ / /



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VENUE

24. The United States District Court for the District of Colorado is an appropriatevenue, pursuant to 28 U.S.C. 1400 (a), because the Defendants are subject to personal

jurisdiction in Colorado.

25. The United States District Court for the District of Colorado is an appropriatevenue, pursuant to 28 U.S.C. 1391(b)(2), because a substantial part of the events giving rise to

the claim for relief are situated in Colorado.

FACTS

26. The Work constitutes copyrightable subject matter, pursuant to 17 U.S.C. 102(a)(5).

27. Righthaven is the owner of the copyright in and to the Work.28. The Work was originally published on or about November 18, 2010.29. On December 8, 2010, the United States Copyright Office (the USCO) granted

Righthaven the registration to the Work, copyright registration number VA0001751279 (the

Registration) and attached hereto as Exhibit 3 is evidence of the Registration in the form of a

printout of the official USCO database record depicting the occurrence of the Registration.

30. On or about November 19, 2010, the Defendants displayed, and continue todisplay, the Infringement on the Website.

31. The Defendants did not seek permission, in any manner, to reproduce, display, orotherwise exploit the Work.

32. The Defendants were not granted permission, in any manner, to reproduce,display, or otherwise exploit the Work.

/ / /

/ / /

/ / /



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CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT

33. Righthaven repeats and realleges the allegations set forth in Paragraphs 1 through32 above.

34. Righthaven holds the exclusive right to reproduce the Work, pursuant to 17U.S.C. 106(1).

35. Righthaven holds the exclusive right to prepare derivative works based upon theWork, pursuant to 17 U.S.C. 106(2).

36. Righthaven holds the exclusive right to distribute copies of the Work, pursuant to17 U.S.C. 106(3).

37. Righthaven holds the exclusive right to publicly display the Work, pursuant to 17U.S.C. 106(5).

38. The Defendants reproduced the Work in derogation of Righthavens exclusiverights under 17 U.S.C. 106(1).

39. The Defendants created an unauthorized derivative of the Work in derogation ofRighthavens exclusive rights under 17 U.S.C. 106(2).

40. The Defendants distributed, and continue to distribute, an unauthorizedreproduction of the Work on the Website, in derogation of Righthavens exclusive rights under

17 U.S.C. 106(3).

41. The Defendants publicly displayed, and continue to publicly display, anunauthorized reproduction of the Work on the Website, in derogation of Righthavens exclusive

rights under 17 U.S.C. 106(5).

42. Pajamas Media has willfully engaged in the copyright infringement of the Work.43. Mr. Preston has willfully engaged in the copyright infringement of the Work.



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44. The Defendants acts as alleged herein, and the ongoing direct results of thoseacts, have caused and will continue to cause irreparable harm to Righthaven in an amount

Righthaven cannot ascertain, leaving Righthaven with no adequate remedy at law.

45. Unless the Defendants are preliminarily and permanently enjoined from furtherinfringement of the Work, Righthaven will be irreparably harmed, and Righthaven is thus

entitled to preliminary and permanent injunctive relief against further infringement by the

Defendants of the Work, pursuant to 17 U.S.C. 502.

PRAYER FOR RELIEF

Righthaven requests that this Court grant Righthavens claim for relief herein as follows:

1. Preliminarily and permanently enjoin and restrain the Defendants, and theDefendants officers, agents, servants, employees, attorneys, related companies, partners, and all

persons acting for, by, with, through, or under the Defendants, from directly or indirectly

infringing the Work by reproducing the Work, preparing derivative works based on the Work,

distributing the Work to the public, and/or displaying the Work, or ordering, directing,

participating in, or assisting in any such activity;

2. Direct the Defendants to preserve, retain, and deliver to Righthaven in hard copiesor electronic copies:

a. All evidence and documentation relating in any way to the Defendantsuse of the Work, in any form, including, without limitation, all such evidence and

documentation relating to the Website;

b. All evidence and documentation relating to the names and addresses(whether electronic mail addresses or otherwise) of any person with whom the

Defendants have communicated regarding the Defendants use of the Work; and

c. All financial evidence and documentation relating to the Defendants useof the Work;



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3. Direct GoDaddy, the current registrar, and any successor domain name registrarfor the Domain, to lock the Domain and transfer control of the Domain to Righthaven;

4. Award Righthaven statutory damages for the willful infringement of the Work,pursuant to 17 U.S.C. 504(c);

5. Award Righthaven costs, disbursements, and attorneys fees incurred byRighthaven in bringing this action, pursuant to 17 U.S.C. 505;

6. Award Righthaven pre- and post-judgment interest in accordance with applicablelaw; and

7. Grant Righthaven such other relief as this Court deems appropriate.DEMAND FOR JURY TRIAL

Righthaven requests a trial by jury pursuant to Rule 38 of the Federal Rules of Civil

Procedure.

Dated this twenty-eighth day of January, 2011.

By: /s/ Steven G. GanimSTEVEN G. GANIM, ESQ.Righthaven LLC9960 West Cheyenne Avenue, Suite 210Las Vegas, Nevada 89129-7701Tel: (702) 527-5900Fax: (702) [email protected]

SHAWN A. MANGANO, ESQ.SHAWN A. MANGANO, LTD.9960 West Cheyenne Avenue, Suite 170Las Vegas, Nevada 89129-7701

Tel: (702) 304-0432Fax: (702) [email protected]

Attorneys for Plaintiff Righthaven LLC

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Case 1:11-cv-00240-CMA Document 1-1 Filed 01/28/11 USDC Colorado Page 1 of 5


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EXHIBIT 2



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OJS 44 (Rev. 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as pr

y local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of inhe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First ListedPlaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for P(For Diversity Cases Only) and One Box for Defendant

1 U.S. Government 3 Federal Question PTF DEF PTF DPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated andPrincipal Place 5

Defendant(Indicate Citizenship of Parties in Item III)

of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

V. NATURE OF SUIT (Place an X in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTE

110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC 158 400 State Reapportionm

120 Marine 310 Airplane 362 Personal Injury - 620 Other Food & Drug 423 Withdrawal 410 Antitrust

130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking

140 Negotiable Instrument Liability 365 Personal Injury - of Property 21 USC 881 450 Commerce

150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws PROPERTY RIGHTS 460 Deportation& Enforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influence

151 Medicare Act 330 Federal Employers Injury Product 650 Airline Regs. 830 Patent Corrupt Organizatio

152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trademark 480 Consumer Credit

Student Loans 340 Marine PERSONAL PROPERTY Safety/Health 490 Cable/Sat TV(Excl. Veterans) 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service

153 Recovery of Overpayment Liabil ity 371 Truth in Lending LABOR SOCIAL SECURITY 850 Securities/Commodiof Veterans Benefits 350 Motor Vehicle 380 Other Personal 710 Fair Labor Standards 861 HIA (1395ff) Exchange

160 Stockholders Suits 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 875 Customer Challenge

190 Other Contract Product Liability 385 Property Damage 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 12 USC 3410

195 Contract Product Liability 360 Other Personal Product Liability 730 Labor/Mgmt.Reporting 864 SSID Title XVI 890 Other Statutory Acti

196 Franchise Injury & Disclosure Act 865 RSI (405(g)) 891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 892 Economic Stabilizat

210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 Environmental Mat

220 Foreclosure 442 Employment Sentence 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation A

230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act 871 IRSThird Party 895 Freedom of Informa 240 Torts to Land Accommodations 530 General 26 USC 7609 Act

245 Tort Product Liability 444 Welfare 535 Death Penalty IMMIGRATION 900Appeal of Fee Determ 290 All Other Real Property 445 Amer. w/Disabilities - 540 Mandamus & Other 462 Naturalization Application Under Equal Access

Employment 550 Civil Rights 463 Habeas Corpus - to Justice

446 Amer. w/Disabilities - 555 Prison Condition Alien Detainee 950 Constitutionality of

Other 465 Other Immigration State Statutes

440 Other Civil Rights Actions

V. ORIGINTransferred fromanother district(specify)

Appeal to DJudge fromMagistrateJudgment

(Place an X in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated orReopened

5 6 MultidistrictLitigation

7

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


GHTHAVEN LLC, a Nevada limited-liability company

Clark (Nevada)

TEVEN G. GANIM, ESQ.; Righthaven LLC; 9960 West Cheyenneenue, Suite 210; Las Vegas, Nevada 89129-7701; Tel: (702)

PAJAMAS MEDIA, INC., a California corporation; andBRYAN PRESTON, an individual,

. . .

opyr g t n r ngement

150,000.00

01/28/2011 /s/ Steven G. Ganim, Esq.

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44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as reqy law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for thf the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil comled. The attorney filing a case should complete the form as follows:

(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, ushe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, g

oth name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thf filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation he county of residence of the defendant is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, nn this section (see attachment).

I. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X f the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.

ederal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment onstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, an

or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship

ifferent parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

II. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this sor each principal party.

V. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is suffo enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, he most definitive.

V. Origin. Place an X in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

emoved from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the peor removal is granted, check this box.

emanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.einstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

ransferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidtigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When thchecked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional stanless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

ury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket nund the corresponding judge names for such cases.

ate and Attorney Signature. Date and sign the civil cover sheet.



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righthaven v pajamas media complaint

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