Aquino v. Zephyr Real Estate - San Francisco Muralists Complaint PDF

Case3:15-cv-00060 Document1 Filed01/06/15 Page1 of 61
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BROOKE OLIVER, ESQ. (SBN 172828)

brooke@50balmy.com
ROSACLAIRE BAISINGER, ESQ. (SBN 200438)
rosaclaire@50balmy.com
50 Balmy Law P.C.
50 Balmy Alley
San Francisco, CA 94110
Phone: 415-641-1116
Fax: 415-695-1116
Attorneys for Plaintiffs
FRANCISCO AQUINO, MONA CARON,
SUSAN KELK CERVANTES, JETRO
MARTINEZ, SIRRON NORRIS, HENRY
SULTAN, JENNIFER BADGER SULTAN, and
MARTIN TRAVERS
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NORTHERN DIVISION
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FRANCISCO AQUINO, an individual;

MONA CARON, an individual; SUSAN
KELK CERVANTES, an individual; JETRO
MARTINEZ, an individual; SIRRON
NORRIS, an individual; HENRY SULTAN,
an individual; JENNIFER BADGER
SULTAN, an individual; and MARTIN
TRAVERS,
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COMPLAINT FOR:
1. COPYRIGHT INFRINGEMENT (17
U.S.C. 101 ET. SEQ.)
2. FALSE ENDORSEMENT (15 U.S.C.
1117, 1125(A))
Plaintiffs,
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Case No.
3.
vs.
ZEPHYR REAL ESTATE LLC, an Indiana
limited liability company; and DOES 1
through 10, inclusive,
MISAPPROPRIATION OF RIGHT OF
PUBLICITY (CAL. CIV. C. 3344)
DEMAND FOR JURY TRIAL
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Defendants.
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Plaintiffs Francisco Aquino, Mona Caron, Susan Kelk Cervantes, Jetro Martinez, Sirron Norris,
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Henry Sultan, Jennifer Badger Sultan, and Martin Travers (collectively, Plaintiffs or Muralists) by
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and through their attorneys, 50 Balmy Law P.C., for their complaint against defendants Zephyr Real
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COMPLAINT
Estate LLC, an Indiana limited liability company with a principal place of business in San Francisco,
California and DOES 1-10, inclusive (collectively, Defendants), allege as follows:

SUMMARY OF THE CASE
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1. Plaintiffs are the renowned artists who created some of San Franciscos most well-known
murals, a vibrant and attractive feature of the city. Many of the Plaintiffs are also community activists
and are known for their efforts to expand and preserve San Franciscos unique cultural character and to
keep it accessible for the artists, activists, and others who create that unique character.
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2. Founded in 1978, Defendant Zephyr Real Estate LLC (Zephyr) is San Francisco's largest
independent real estate firm, with nearly $1.8 billion in gross sales in 2013 and a roster of more than
220 full-time real estate agents, according to the Zephyr press release attached as Exhibit A.
3. For the past twenty-three years, Zephyr has produced a custom San Francisco-themed calendar
for its clients, colleagues, family, and associates. Id.
4. On information and belief, these calendars are available in Zephyrs ten Bay Area offices and
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distributed by Zephyr real estate brokers and agents to their clients in person; are mailed to past,
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current, and prospective clients; and are promoted on Zephyrs Facebook page, realtor blogs, and other
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media.
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5. On information and belief, Zephyr calendars are distributed to more than 10,000 clients each
year.
6. Zephyrs 2013 calendar, San Francisco Murals (the Calendar), used unauthorized
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reproductions of Plaintiffs copyrighted murals to advertise luxury homes for sale, displaying examples
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of such homes next to each Plaintiffs murals, along with a description of the homes features and
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prices. A true and correct copy of the Calendar is attached hereto as Exhibit B.
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7. Plaintiffs murals as more specifically identified below are depicted on 8 pages of the Calendar,
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specifically, the cover, and the months of January, February, March, June, August, October, and
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December (collectively, the Murals).
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8. Defendants did not seek or obtain permission from any of the Plaintiffs even those whom the
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Calendar identified by name or whose copyright notices were plainly visible on their murals to use
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their original artwork in the Calendar.

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COMPLAINT
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9. Defendants did not seek or obtain permission from Plaintiffs Aquino, Caron, Martinez, Norris,
Sultan, Badger Sultan, or Travers to use their names in the Calendar.
10. By including all but one of the Plaintiffs names in the Calendar, Zephyr implied that these
Plaintiffs had endorsed or chosen to affiliate themselves with Zephyr or the sale of luxury real estate in
San Francisco.
11. The Calendar credits sfmuralarts.com as a primary source of information for the murals used in
the Calendar (Exhibit B, p. 15), and sfmurarts.com does provide information about the Murals,
including authorship and links to most of the Plaintiffs websites, which provide contact information.
12. Sfmuralarts.com is an educational, noncommercial website dedicated to documenting and
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providing information about murals in San Francisco. Its Terms of Use require those who access and
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use the website to agree not to use any information or material in any manner that infringes any
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copyright, trademark, patent or other proprietary right of any party. See
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http://www.sfmuralarts.com/terms.html, paragraph 6.2.5.
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13. On information and belief, the Calendar was distributed in Zephyrs San Francisco Bay Area
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offices, was distributed by Zephyr agents in person and by mail throughout the San Francisco Bay
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Area, and was promoted online. See blog posts by Zephyr realtors Oliver Burgelman, David Ames,
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and Ellie Kravets regarding the Calendar, true and correct copies of which blog posts are attached
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hereto as Exhibit C.
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14. Many Zephyr realtors customized the Calendar with their names and contact information for
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distribution. True and correct copies of some of these customized Calendars are attached as Exhibit D.
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15. Murals by Plaintiffs Caron, Cervantes, Martinez, Sultan and Badger Sultan, and Travers (the
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Video Murals) also appeared, without permission, in an animated video promoting the Calendar (the
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Video). The Video was posted on September 27, 2012 to Zephyrs Facebook page and on Zephyr
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real estate agent David Ames blog. True and correct copies of screenshots of the Facebook posting
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and the Video are attached hereto as Exhibit E.
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16. In 2013, the year in which the Calendar was distributed, Zephyrs 225 agents sold 1,775
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properties for nearly $1.8 billion dollars of gross sales. Zephyrs 2013 sales signified an increase of
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over 30 percent from the prior year. Exhibit A.

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COMPLAINT
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17. Zephyr was notified as early as January 2013 that use of the Murals without the artists
permission was copyright infringement.
18. Despite being notified of the Calendars copyright infringement, Zephyr continued to distribute
the Calendar.
19. After Zephyr received a formal cease-and-desist letter from Plaintiffs attorneys in May 2013,
Zephyr deleted the Video from its Facebook page and Zephyrs attorneys informed Plaintiffs attorneys
that Zephyr had ceased distribution of the Calendar.
20. Zephyr did not deliver undistributed copies of the Calendar to Plaintiffs attorneys until March
2014, after a second demand to do so, and after the Calendar was no longer useable. Zephyr delivered
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approximately 625 copies of the Calendar.
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21. On information and belief Zephyr distributed more than 9,300 copies of the Calendar.
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22. This action is brought because Plaintiffs allege that Defendants reproduction, distribution,
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adoption and use of their Murals in the Calendar, Video, and in other media constitutes copyright
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infringement, false endorsement and violates their rights of rights of publicity.

JURISDICTION
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23. This action arises under the copyright and trademark laws of the United States 17 U.S.C. 101
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et seq. and 15 U.S.C. 1125 (a). Jurisdiction is conferred upon this Court by 28 U.S.C. 1338(a) and
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28 U.S.C. 1367(a).
VENUE
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24. Venue is proper in this district pursuant to 28 U.S.C. 1400(a) and in this division of this
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district because the infringing activity took place in this division of this district as, for example and
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without limitation, the Calendar was distributed in this district and in this division, Zephyr conducts
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business in this district and this division, and Zephyr's Facebook page is accessible in this district and in
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this division.
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PLAINTIFFS
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25. Plaintiff Francis Aquino (Aquino) (known professionally as Twick) is an individual
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residing in the City of San Francisco, in the State of California. He is the co-author of the Untitled
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Mural in Chinatown with David Cho, depicted in the Calendar for the month of March. Exhibit B, p. 5.
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COMPLAINT
26. Plaintiff Mona Caron (Caron) is an individual residing in the City of San Francisco, in the
State of California. She is the author of The Duboce Bikeway Mural depicted in the Calendar for the
month of February. Exhibit B, p. 4.
27. Plaintiff Susan Kelk Cervantes (Cervantes) is an individual residing in the City of San
Francisco, in the State of California. She and Judith Jamerson are co-authors of the mural Family Life
and Spirit of Mankind depicted in the Calendar for the month of January. Exhibit B, p. 3.
28. Plaintiff Jetro Martinez (also known as Jet Martinez) (Martinez) is an individual residing in
the City of Oakland, in the State of California. He is co-author of the Untitled Mural in North
Beach/Russian Hill with Albert Reyes depicted in the Calendar for the month of October (Exhibit B, p.
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12) and on the cover of the Calendar, for the letter S (Exhibit B, p. 1).
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29. Plaintiff Sirron Norris (Norris) is an individual residing in the City of San Francisco, in the
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State of California. He is author of the El Toreador Mural depicted in the Calendar for the month of
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December. Exhibit B, p. 14.
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30. Plaintiff Henry Sultan (Sultan) is an individual residing in the City of San Francisco in the
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State of California. He is the co-author of the mural Looking in and Through with Plaintiff Jennifer
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Badger Sultan (Badger Sultan) depicted in the Calendar for the month of August. Exhibit B, p. 10.
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31. Plaintiff Badger Sultan is an individual residing in the City of San Francisco, in the State of
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California. She is co-author of the mural Looking in and Through with Plaintiff Sultan depicted in the
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Calendar for the month of August Exhibit B, p. 10.
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32. Plaintiff Martin Travers (Travers) is an individual currently residing in the Republic of
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Ireland. He is the author of the mural A New Dawn (Naya Bihana) depicted in the Calendar for the
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month of June (Exhibit B, p. 8) and on the cover of the Calendar, for the letter R (Exhibit B, p. 1).
DEFENDANTS
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33. On information and belief, Defendant Zephyr is a limited liability company organized under the
laws of the State of Indiana and with a place of business at 4200 17th Street, San Francisco, CA 94114.
34. On information and belief, Defendant Zephyr commissioned, created, and distributed the
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Calendar.
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COMPLAINT
35. Plaintiffs do not presently know the true names or capacities of those persons, firms, and
entities named herein as DOES 1 - 10, however, Plaintiffs are informed and believe and thereon allege
that each of the said DOE Defendants is responsible in some manner for the events and happenings
herein alleged and for the damages suffered by Plaintiffs herein. Plaintiffs reserve the right to amend
this Complaint when the true names and capacities of the DOE Defendants have in fact been
ascertained by Plaintiffs. Plaintiffs are informed and believe and thereon allege that some of the DOE
Defendants, named herein, are agents, employees, or representatives of some of the other DOE
Defendants and/or the named Defendants and, in doing the things herein alleged, were acting within the
course and scope of such agency and employment.
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36. Plaintiffs are informed and believe and, on that basis, allege that, in connection with the acts set
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forth herein, each of the Defendants acted willingly, intentionally, and knowingly, both for himself,
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herself, or itself, and in concert with certain other Defendants, and that certain of the Defendants acted
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as an agent for the other Defendants, and were at all times acting within the course and scope of such
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agency, with the consent, authorization and/or ratification of the other Defendants, and in furtherance of
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a common scheme to infringe the copyrights and other valuable rights of Plaintiffs.
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FACTS AS TO EACH INFRINGED MURAL
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Untitled Mural in Chinatown
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37. Plaintiff Aquino co-authored the Untitled Mural in Chinatown, also known as the Chinatown
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Mural or the Dragon Mural (herein referred to as Chinatown Mural), with David Cho, a true and
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correct image of which is shown below and in Exhibit F, p. 1.
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COMPLAINT
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38. Plaintiff Aquino is well known in the mural community as a member of Inner City Phame
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(ICP), a respected crew of spray can muralists founded in 1989. He has been the subject of articles in
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the San Francisco Bay Guardian, Endless Canvas, and Mission Local. In 2010, he was retained by the
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San Francisco Arts Commission and the San Francisco Department of Public Works StreetSmARTS
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program to teach mural painting to youth as an alternative to graffiti. He is a longtime collaborator
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with the Clarion Alley Mural Project, an organization that has been outspoken against gentrification
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and escalating real estate prices in San Francisco.
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39. Zephyr reproduced a portion of the Chinatown Mural in its Calendar for the month of March as
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shown below (see also Exhibit B, p. 5). The Calendar identified Plaintiff Aquino as the author in its
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Calendar, but did not identify co-author David Cho.
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COMPLAINT
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40. Painted on a wall of the store located at 720 Grant at Commercial, the Chinatown Mural is in
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the Chinatown neighborhood, not in the Financial District neighborhood as incorrectly stated in the
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Calendar. The description of the Financial District condo advertised with this mural in the Calendar is
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as follows:
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Its all about San Francisco lifestyle in this urban condo near Union
Square. Top-of-the-line appliances, mahogany cabinetry, granite counters,
exposed brick accent walls, high ceilings, wood floors and bonus room all
add to the allure of this fantastic one-bedroom condo. Common area roof
deck and proximity to fine dining, shopping and entertainment complete
the package.
41. According to real estate web site Trulia.com, as of December 20, 2013:
The median sales price for homes in Chinatown, San Francisco for Sep 13 to Dec
13 [2013] was $400,000 based on 3 sales. Compared to the same period one year
ago, the median sales price decreased 80%, or $1,600,000, and the number of
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COMPLAINT
sales decreased 40%. Average price per square foot for Chinatown was $933, a
decrease of 48.1% compared to the same period last year.
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The median sales price for homes in Financial District, San Francisco for Sep 13
to Dec 13 [2013] was $1,825,000 based on 1 sales. Compared to the same period
one year ago, the median sales price decreased 15.1%, or $325,000, and the
number of sales increased 0%.
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42. The Chinatown Mural is an original work of art that constitutes copyrightable subject matter
under the Copyright Act, 17 U.S.C. 101 et seq. Plaintiff Aquino and David Cho registered copyright
in the Chinatown Mural on November 14, 2013, with a completion date of 2009, and secured
Certificate of Registration No. VAU 1-154-449, a copy of which is attached hereto as Exhibit G, pp. 1-
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43. As the joint owners of all right, title and interest in and to the copyright in the Chinatown
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Mural, Plaintiff Aquino and David Cho have, and all relevant times have had, all of the exclusive
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rights, as set forth in 17 U.S.C. 106, to, among other things, prepare derivative works based on the
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Chinatown Mural or to transfer these rights to third parties.
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44. Plaintiff Aquino has never assigned the copyright in the Chinatown Mural to any other person
or entity.
45. On information and belief, David Cho has never assigned the copyright in the Chinatown Mural
to any other person or entity.
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46. Zephyr never contacted Plaintiff Aquino or David Cho to get permission for using the
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Chinatown Mural in its Calendar, even though Plaintiff Aquinos name in the Calendar shows that
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Zephyrs employees or agents were aware that Plaintiff Aquino is an author of the mural.
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47. The Calendar credits sfmuralarts.com as a primary source of information for the murals used in
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the Calendar (Exhibit B, p. 15). Though sfmuralarts.com does not provide contact information for
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Plaintiff Aquino, a search of the Internet for Francisco Aquino mural immediately brings up the San
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Francisco Arts Commissions webpage for Plaintiff Aquino, and Defendants could have contacted
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Plaintiff Aquino through the San Francisco Arts Commission.
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48. Defendants prominently used Plaintiff Aquinos copyrighted mural, identity, persona, publicity
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rights, trademark, trade dress, identity, and signature, including but not limited to the considerable
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goodwill attached to his name as an artist and community member (Rights) in the Calendar and
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COMPLAINT
otherwise to advertise, market, and promote Defendants commercial companies, homes offered for
sale, and other products and services.
49. At no time did Plaintiff Aquino or David Cho ever give permission to Defendants, or any of
them, to reproduce, distribute, or make derivative works based upon their Rights in the Calendar or
otherwise to associate with, advertise, market, or promote Defendants companies, products, or
services, or for any other purpose.
50. Neither Plaintiff Aquino nor David Cho has received any compensation for such unauthorized
commercial use of their Rights to advertise, market, and promote Defendants companies, products, and
services.
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51. Plaintiff Aquino alleges that his copyrights have been infringed by Defendants unauthorized
reproductions of his Chinatown Mural in the Calendar.
52. Plaintiff Aquino alleges that, because a reasonable consumer would assume that Zephyr
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properly licensed the Chinatown Mural rather than copying it without permission, the Calendar falsely
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implies that Plaintiff Aquino agreed to endorse or affiliate himself with Zephyr and the sale of luxury
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real estate in San Francisco, thus harming his reputation for artistic integrity and diminishing the
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market for future licensing of his work in violation of the Lanham Act.
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53. Plaintiff Aquino is informed and believes, and based thereon alleges, that Defendants
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infringement of his Rights in connection with the Calendar and otherwise, has harmed and continues to
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harm him by diminishing his reputation for artistic and community integrity. The perception that
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Plaintiff Aquino endorsed, sponsored, or is affiliated with Zephyr will make it more difficult for him to
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obtain community grants or enter into appropriate and ethical license agreements that are consistent
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with his beliefs.
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The Duboce Bikeway Mural
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54. Plaintiff Caron authored The Duboce Bikeway Mural (Bikeway). Bikeway, which spans an
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entire city block, true and correct images of which are shown in the panels below and in Exhibit F, pp.
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COMPLAINT
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COMPLAINT
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55. Bikeway, which was painted on Duboce Avenue between Church Street and Market Street, in
the Duboce Triangle neighborhood, was commissioned by SF City Bike Plan and was painted over five
months in the summer of 1998, with the assistance from 100 people from the neighborhood.
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56. At 340 feet in length, 18 feet in height, and spanning an entire block, Bikeway is iconic, not only
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for its size but also for its celebration of the creation of the Duboce Bikeway, the very first stretch of
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street in San Francisco to be converted from car use, to bicycle- and pedestrian-only use. It is the
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gateway to the Wiggle, the now-famous zig-zagging route through the Lower Haight that enables
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bicyclists to avoid steep hills when heading from East to West in San Francisco. This first bikeway,
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which the mural celebrates and to which it brought international attention, was the harbinger of a slew
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of improvements for bicyclists and pedestrians that San Francisco has since implemented. The mural
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itself, within its pictorial representation of an East to West bicycle ride across an improved City,
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features, among other things, painted cameos of various local bicycle activists and city-livability
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advocates, whose contributions were crucial to these improvements that we now enjoy. The vast
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majority of these same activists, among which the very ones who gave The Wiggle its name, have since
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been forced to move away from San Francisco due to the inability to afford housing in San Francisco.
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57. As Chris Carlsson stated in an article about Plaintiff Caron for Processed World magazine
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(http://www.processedworld.com/Issues/issue2001/pw2001_70-77_Wiggle_Mural.pdf): The Duboce
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Bikeway is a beachhead in a long, slow battle to transform San Francisco into a city really worth living
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innot just for the affluent, but for everyone. Every inch of territory we can take away from the banal
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daily descent into life as targeted markets helps restore our humanity a bit.
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58. By contrast, the description of the Duboce Triangle house advertised with this mural in the
Calendar is as follows:
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COMPLAINT
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This delightful property combines opportunity with desirability in a big way.

With bright and spacious units and an amazing location, this three-unit building
was an exceptional investment opportunity. Large three-bedroom, two-bath unit,
plus two one-bedroom, one-bath units. Private entrances, lovely shared outdoor
space and garage parking offer a San Francisco lifestyle par excellence.
59. Identified as Bikeway in the Calendar, this murals actual name is The Duboce Bikeway
Mural. A part of this mural was taken out of context and used in the Calendar for the month of
February as shown below (see also Exhibit B, p. 4).
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Another part of Bikeway, similarly taken out of context, was used in the Video (see Exhibit E, p. 12).
60. Per Trulia.com, as of December 19, 2013:
The median sales price for homes in Duboce Triangle for Sep 13 [2013] to Dec 13 [2013]
was $1,235,000. This represents an increase of 28%, or $270,000, compared to the prior
quarter and an increase of 4.7% compared to the prior year. Sales prices have
appreciated 59.9% over the last 5 years in Duboce Triangle, San Francisco. The median
sales price of $1,235,000 for Duboce Triangle is 45.29% higher than the median sales
price for San Francisco CA Average price per square foot for homes in Duboce
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COMPLAINT
Triangle was $875 in the most recent quarter, which is 13.64% higher than the average
price per square foot for homes in San Francisco.
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61. Bikeway is an original work of art that constitutes copyrightable subject matter under the
Copyright Act, 17 U.S.C. 101 et seq. Plaintiff Caron registered copyright in Bikeway on November
13, 2013 and secured Certificate of Registration No. VA 1-899-654, a copy of which is attached hereto
as Exhibit G, p. 3.
62. By reason of the foregoing, Plaintiff Caron now enjoys the exclusive rights and privileges in
and to the copyright in Bikeway, and is, and at all times material hereto was, the sole owner of all right,
title, and interest in and to Bikeway.
63. As the sole owner of all right, title and interest in and to the copyright in Bikeway, Plaintiff
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Caron has, and all relevant times has had, all of the exclusive rights, as set forth in 17 U.S.C. 106, to,
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among other things, prepare derivative works based on Bikeway or to transfer these rights to third
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parties. Plaintiff Caron has never assigned the copyright in Bikeway to any other person or entity.
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64. Plaintiff Carons murals have appeared in the New York Times, the San Francisco Chronicle,
the Sacramento Bee, and many art magazines both in the United States and abroad.
65. Although Plaintiff Caron is identified in the Calendar as the author, none of the Defendants
contacted her or secured her permission to use Bikeway in the Calendar or Video.
66. The Calendar identifies Ms. Carons website www.monacaron.com, which provides her
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contact information and carries this notice: Please get permission before using images. Yet, no
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permission was sought from Ms. Caron to use images of Bikeway.
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67. Plaintiff Carons reputation as an artist and a community activist was harmed by the appearance
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that she licensed her work to Zephyr to advertise luxury real estate. Plaintiff Caron is particularly upset
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about the infringement of her Rights in the Calendar and Video because she has been active against
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displacement and has devoted her lifes work to producing public art that appeals and speaks to every
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societal class.
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68. Defendants prominently used Plaintiff Carons copyrighted mural, identity, persona, publicity
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rights, trademark, trade dress, identity, and signature, including but not limited to the considerable
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goodwill attached to her name as an artist and community member (Rights) in the Calendar and
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COMPLAINT
otherwise to advertise, market, and promote Defendants commercial companies, homes offered for
sale, and other products and services.
69. At no time did Plaintiff Caron ever give permission to Defendants, or any of them, to reproduce,
distribute, or make derivative works based upon her Rights in the Calendar or otherwise to associate
with, advertise, market, or promote Defendants companies, products, or services, or for any other
purpose.
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70. Plaintiff Caron has not received any compensation for such unauthorized commercial use of her
Rights to advertise, market, and promote Defendants companies, products, and services.
71. Plaintiff Caron alleges that her copyrights have been infringed by Defendants unauthorized
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reproductions of Bikeway in the Calendar, and republication of the Calendar in other media to be
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determined at trial.
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72. Plaintiff Caron alleges that, because a reasonable consumer would assume that Zephyr properly
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licensed Bikeway rather than copying it without permission, the Calendar falsely implies that Plaintiff
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Caron agreed to endorse or affiliate herself with Zephyr and the sale of luxury real estate in San
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Francisco, thus harming her reputation for artistic integrity and diminishing the market for future
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licensing of her work in violation of the Lanham Act.
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73. Plaintiff Caron is informed and believes, and based thereon alleges, that Defendants
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infringement of her Rights in connection with the Calendar and otherwise, has harmed and continues to
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harm her by diminishing her reputation for artistic and community integrity. The perception that
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Plaintiff Caron endorsed, sponsored, or is affiliated with Zephyr will make it more difficult for her to
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enter into appropriate and ethical license agreements that are consistent with her beliefs.
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Family Life and Spirit of Mankind
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74. Plaintiff Cervantes co-authored the mural Family Life and Spirit of Mankind (Spirit Mural)
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with Judith Jamerson. True and correct images of Spirit Mural are shown below and in Exhibit F, pp.
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COMPLAINT
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75. Spirit Mural is well known in the community. It is located at the Leonard R. Flynn Elementary
School at 3125 Cesar Chavez Street, in the Bernal Heights neighborhood.
76. Plaintiff Cervantes in particular is a well-known artist and community activist. She founded the
nonprofit Precita Eyes Muralists Association and Center, one of the most respected community mural
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COMPLAINT
centers in United States. Precita Eyes Muralists Association and Center sponsors and implements
ongoing mural projects throughout the Bay Area and internationally.
77. Plaintiff Cervantes has licensed the use of her murals for creative and commercial projects.
78. A part of Spirit Mural was used in the Calendar for the month of January as shown below (see
also Exhibit B, p. 3). Another part was used in the Video (see Exhibit E, p. 14).
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
79. The description of the Bernal Heights house advertised with this mural in the Calendar is as
follows:
24
The modern residence, built in 2006, makes the best of its location with views of
the City, the Bay, and Bernal Hill. The top floor has a master suite with a deck,
hot tub and outdoor shower! The backyard Zen garden includes a sauna. The
interior is the epitome of elegance as well. This four-bedroom, three-bath home is
all about luxury and location.
25
26
27
28

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- 17 -
COMPLAINT
The median sales price for homes in Bernal Heights for Sep 13 [2013] to Dec 13
[2013] was $980,000. This represents an increase of 5.9%, or $55,000, compared
to the prior quarter and an increase of 30.7% compared to the prior year. Sales
prices have appreciated 40% over the last 5 years in Bernal Heights, San
Francisco. The median sales price of $980,000 for Bernal Heights is 15.29%
higher than the median sales price for San Francisco CA.
1
2
3
4
81. Spirit Mural is an original work of art that constitutes copyrightable subject matter under the
Copyright Act, 17 U.S.C. 101 et seq. Spirit Mural was registered with the US Copyright Office on
March 20, 1977 -- more than 30 years prior to its infringement by Defendants -- and secured
Certificate of Registration No. GP119401, a copy of which is attached hereto as Exhibit G, pp. 4-6.
82. By reason of the foregoing, Plaintiff Cervantes and Judith Jamerson now enjoy the exclusive
rights and privileges in and to the copyright in Spirit Mural, and are, and at all times material hereto
10
11
were, the joint owners of all right, title, and interest in and to their Spirit Mural.
83. As the sole owners of all right, title and interest in and to the copyright in their Spirit Mural,
12
Plaintiff Cervantes and Judith Jamerson have, and all relevant times have had, all of the exclusive
13
rights, as set forth in 17 U.S.C. 106, to, among other things, prepare derivative works based on their
14
Spirit Mural or to transfer these rights to third parties. Plaintiff Cervantes has never assigned the
15
copyright in the Spirit Mural to any other person or entity. On information and belief, Judith Jamerson
16
has never assigned the copyright in the Spirit Mural to any other person or entity.
17
84. Even though copyright notices for this mural are painted in the lower right area of each of the
18
two parts of the mural Zephyr never contacted Plaintiff Cervantes or Judith Jamerson to get permission
19
for using the Spirit Mural in its Calendar.
20
85. The Calendar does not specify Plaintiff Cervantes and Judith Jamerson as authors of Spirit
21
Mural but the Calendar identifies this mural as Spirit of Mankind. The Calendar credits
22
sfmuralarts.com as a primary source of information for murals (Exhibit B, p. 15) and sfmuralarts.com
23
provides information for this mural at http://www.sfmuralarts.com/artist/susan-kelk-cervantes/71.html,
24
including listing its author as Plaintiff Cervantes, and providing her website
25
www.susankcervantes.com, which contains contact information for Plaintiff Cervantes.
26
86. Furthermore, had Zephyr searched for Spirit of Mankind mural on the Internet Zephyr would
27
have immediately found Plaintiff Cervantes website www.susankcervantes.com.
28
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- 18 -
COMPLAINT
87. Defendants prominently used Plaintiff Cervantes and Judith Jamersons copyrighted mural in
the Calendar and otherwise to advertise, market, and promote Defendants commercial companies,
homes offered for sale, and other products and services.
88. At no time did Plaintiff Cervantes or Judith Jamerson ever give permission to Defendants, or
any of them, to reproduce, distribute, or make derivative works of Spirit Mural in the Calendar.
89. Neither Plaintiff Cervantes nor Judith Jamerson has received any compensation for such
unauthorized commercial use of Spirit Mural to advertise, market, and promote Defendants
companies, products, and services.
90. Plaintiff Cervantes alleges that her copyrights have been infringed by Defendants unauthorized
10
reproductions of Spirit Mural in the Calendar, and republication of the Calendar in other media to be
11
determined at trial.
Untitled Mural in North Beach/Russian Hill
12
13
91. Plaintiff Martinez co-authored the Untitled Mural in North Beach/Russian Hill (North Beach
14
Mural) with Albert Reyes in 2001. True and correct images of North Beach Mural are shown below
15
and in Exhibit F, pp. 8-9.
16
17
18
19
20
21
22
23
24
25
26
27
28
- 19 -
COMPLAINT
92. Plaintiff Martinez is a prolific muralist in the Bay Area known for contributing significantly to
public art in San Francisco. He was a participating artist in a program called Street SmARTS, a joint
effort by the San Francisco Arts Commission and the Department of Public Works to counter illegal
graffiti by paying artists to paint murals as well as teaching kids who tag to see the potential for graffiti
as a legal art form. Plaintiff Martinez was also recently selected for Facebooks first artist-in-residency
program, an extension of the Analog Research Lab, which is in charge of creating offline visual work
for the company.
8
9
93. North Beach Mural is located at 788 Lombard at Columbus, on a wall of the 901 Columbus
Caf on the border of the Russian Hill and North Beach neighborhoods in San Francisco.
10
94. Defendants reproduced part of the North Beach Mural in the Calendar for the month of October,
11
as shown below (see also Exhibit B, p. 12), on the cover of the Calendar for the letter S (Exhibit B, p.
12
1), and in the Video as shown in Exhibit E, p. 11.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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- 20 -
COMPLAINT
1
2
95. The description of the Russian Hill/North Beach house advertised with this mural in the
Calendar is as follows:
This top-floor condo is top flight and echoes history with period details, hardwood
floors, spacious rooms, high ceilings and a private courtyard entrance. The
Mediterranean building dates back to the Roaring 20s, and is in a captivating
garden setting. Russian Hill is home to many restaurants and great shopping
opportunities, many within walking distance, and is one of the Citys most desirable
neighborhoods.
4
5
6

7
The median sales price for homes in North Beach, San Francisco for Sep 13 to Dec
13 [2013] was $947,500 based on 4 sales. Compared to the same period one year
ago, the median sales price increased 35.4%, or $247,500, and the number of sales
decreased 33.3%. The average listing price for homes for sale in North Beach was
$775,000 for the week ending Dec 11, which was unchanged compared to the prior
week.
8
9
10
11
12
The median sales price for homes in Russian Hill for Sep 13 to Dec 13 [2013] was
$910,000. This represents a decline of 9%, or $90,000, compared to the prior
quarter and an increase of 7.3% compared to the prior year. Sales prices have
depreciated 44.4% over the last 5 years in Russian Hill, San Francisco. The median
sales price of $910,000 for Russian Hill is 6.93% higher than the median sales price
for San Francisco CA. Average listing price for homes on Trulia in Russian Hill
was $2,717,741 for the week ending Dec 11, which represents an increase of 3.3%,
or $86,828 compared to the prior week and an increase of 13%, or $313,176,
compared to the week ending Nov 20.
13
14
15
16
17
98. North Beach Mural is an original work of art that constitutes copyrightable subject matter under
18
the Copyright Act, 17 U.S.C. 101 et seq. Plaintiff Martinez and Albert Reyes registered copyright in
19
North Beach Mural on August 26, 2013 with a completion date of 2001, and secured Certificate of
20
Registration No. VA 1-872-129, a copy of which is attached hereto as Exhibit G, pp. 7-8.
21
99. By reason of the foregoing, Plaintiff Martinez and Albert Reyes now enjoy the exclusive rights
22
and privileges in and to the copyright in North Beach Mural, and are, and at all times material hereto
23
were, the joint owners of all right, title, and interest in and to their North Beach Mural.
24
100.
As the sole owners of all right, title and interest in and to the copyright in their North
25
Beach Mural, Plaintiff Martinez and Albert Reyes have, and all relevant times have had, all of the
26
exclusive rights, as set forth in 17 U.S.C. 106, to, among other things, prepare derivative works based
27
on their North Beach Mural or to transfer these rights to third parties. Plaintiff Martinez has never
28
/ / /
- 21 -
COMPLAINT
assigned the copyright in North Beach Mural to any other person or entity. On information and belief,
Albert Reyes has never assigned the copyright in North Beach Mural to any other person or entity.
3
4
5
6
7
8
9
10
11
101.
The Calendar identifies Plaintiff Martinez as the author and lists his website
jetromartinez.com, which provides his email address. (It does not identify his co-author, Albert Reyes.)
102.
Despite clearly knowing Plaintiff Martinez identity and web address, none of the
Defendants contacted him to request permission to use this mural in the Calendar or Video.
103.
In or about approximately February 2013 Plaintiff Martinez learned about the Calendar
from Plaintiff Norris and that Plaintiff Norris had informed Zephyr the Calendar was infringing.
104.
Plaintiff Martinez visited the 4040 24th Street Zephyr office and saw copies of the
Calendar in the window, still available to everyone.

105.
Defendants prominently used Plaintiff Martinez and Albert Reyes copyrighted mural,
12
and Plaintiff Martinez identity, persona, publicity rights, trademark, trade dress, identity, and
13
signature, including but not limited to the considerable goodwill attached to his name as an artist and
14
community member (Rights) in the Calendar and otherwise to advertise, market, and promote
15
Defendants commercial companies, homes offered for sale, and other products and services.
16
106.
At no time did Plaintiff Martinez or Albert Reyes ever give permission to Defendants, or
17
any of them, to reproduce, distribute, or make derivative works based upon their Rights in the Calendar
18
or otherwise to associate with, advertise, market, or promote Defendants companies, products, or
19
services, or for any other purpose.
20
107.
Neither Plaintiff Martinez nor Albert Reyes has received any compensation for such
21
unauthorized commercial use of their Rights to advertise, market, and promote Defendants companies,
22
products, and services.
23
108.
Plaintiff Martinez alleges that his copyrights have been infringed by Defendants
24
unauthorized reproductions of North Beach Mural in the Calendar, and republication of the Calendar in
25
other media to be determined at trial.
26
109.
Plaintiff Martinez alleges that, because a reasonable consumer would assume that Zephyr
27
properly licensed the North Beach Mural rather than copying it without permission, the Calendar
28
falsely implies that Plaintiff Martinez agreed to endorse or affiliate himself with Zephyr and the sale of
- 22 -
COMPLAINT
luxury real estate in San Francisco, thus harming his reputation for artistic integrity and diminishing the
market for future licensing of his work in violation of the Lanham Act.
110.
Plaintiff Martinez is informed and believes, and based thereon alleges, that Defendants
Plaintiff Martinez endorsed, sponsored, or is affiliated with Zephyr will make it more difficult for him
to obtain community grants or enter into appropriate and ethical license agreements that are consistent
with his beliefs.

El Toreador Mural
9
10
11
111.
Plaintiff Norris authored the El Toreador Mural (El Toreador), a true and correct
image of which is shown below and in Exhibit F, p. 10.
12
13
14
15
16
17
18
112.
Plaintiff Norris graduated from the Art Institute of Pittsburgh, and began his art career in
19
San Francisco in 1997. He is known for his extensive public art contributions, and one of his most
20
notable murals is Victorion: El Defensor de la Mission, a comment on gentrification. Located in San
21
Franciscos historic Balmy Alley, Victorion has been featured in various media platforms including
22
magazines, books, and advertisements.
23
113.
Plaintiff Norris Calumet Mural was recently featured in an international Mitsubishi
24
television commercial featuring the launch of their newest vehicle in 2013. One of his murals was also
25
used as the platform to launch the new Ricoh Theta campaign in Japan and the US. In 2013, his works
26
appeared in two feature films including Woody Allens Blue Jasmine and Will Smiths After Earth.
27
Snapfishs photo book library exclusively features his design and artistic style. He was also the lead
28
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- 23 -
COMPLAINT
artist in Fox Networks animated show Bobs Burgers, where he created backgrounds and character
designs.
114.
Plaintiff Norris teaches cartooning classes at his Mission District studio with the goal of
creating a non-profit organization that helps kids learn innovative, sustainable ways to create art. In
2010, his art career was featured on PBS News Hour with Jim Lehrer and in the television show,
Concrete Canvas in the United Kingdom, and he has been interviewed by KQED and the Bay
Guardian.
8
9
10
11
115.
Plaintiff Norris El Toreador is located at 50 West Portal Avenue in the West Portal
neighborhood.
116.
Defendants used El Toreador in the Calendar for the month of December as shown below
(see also Exhibit B, p. 14).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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- 24 -
COMPLAINT
117.
as follows:
The description of the West Portal house advertised with El Toreador in the Calendar is
The new owners have it all in this elegant Marina-style home in the desirable
West Portal neighborhood. Built in 1923, the period detail was lovingly
preserved in this welcoming three-bedroom, two-bath home. Rooms are spacious
and include a living room with fireplace, large eat-in kitchen, formal dining room
and sunroom with ocean views. With village shopping and transportation nearby,
its the best of all worlds.
4
5
6
118.
Per Trulia.com, as of December 20, 2013:
7
The median sales price for homes in West Portal for Sep 13 to Dec 13 [2013] was
$1,373,750. This represents an increase of 17.4%, or $203,750, compared to the
prior quarter and an increase of 26% compared to the prior year. Sales prices have
appreciated 31% over the last 5 years in West Portal, San Francisco. The median
sales price of $1,373,750 for West Portal is 61.43% higher than the median sales
price for San Francisco CA. Average listing price for homes on Trulia in West
Portal was $1,125,000 for the week ending Dec 11, which represents an increase
of 80.7%, or $502,500 compared to the prior week and a decline of 11.3%, or
$143,250, compared to the week ending Nov 20 [2013].
8
9
10
11
12
13
119.
El Toreador is a work of art that constitutes copyrightable subject matter under the
14
Copyright Act, 17 U.S.C. 101 et seq. Plaintiff Norris registered copyright in El Toreador on
15
March 22, 2013, with a completion date of 2007, and secured Certificate of Registration No. VA 1-866-
16
660, a copy of which is attached hereto as Exhibit G, p. 9.
17
120.
By reason of the foregoing, Plaintiff Norris now enjoys the exclusive rights and
18
privileges in and to the copyright in El Toreador, and is, and at all times material hereto was, the sole
19
owner of all right, title, and interest in and to El Toreador.
20
121.
As the sole owner of all right, title and interest in and to the copyright in El Toreador,
21
Plaintiff Norris has, and all relevant times have had, all of the exclusive rights, as set forth in 17 U.S.C.
22
106, to, among other things, prepare derivative works based on El Toreador or to transfer these rights
23
to third parties. Plaintiff Norris has never assigned the copyright in the El Toreador to any other person
24
or entity.
25
122.
The Calendar correctly identified Plaintiff Norris as the author of El Toreador and even
26
included a reference to his website sirronnorris.com. Defendants could have easily used the website
27
to contact Plaintiff Norris as it provides Plaintiff Norris email address, but never contacted him or
28
secured his permission to use his mural in its Calendar.

- 25 -
COMPLAINT
123.
In or about approximately January 2013, Plaintiff Norris learned that his mural and
murals by other muralists were depicted in the Calendar when one of his neighbors received a Calendar
in the mail and informed him about it.
124.
In or about approximately January 2013 Plaintiff Norris emailed Zephyr about the
Calendar and corresponded with someone he believes was in charge of the Calendar project and
informed Zephyr that Zephyrs use of his mural was infringing. This person told Plaintiff Norris she
thought using the Murals in the Calendar was a fair use, and offered to give Plaintiff Norris copies of
the Calendar. Plaintiff Norris informed her that the use was not fair use.
125.
Defendants prominently used Plaintiff Norris copyrighted mural, identity, persona,
10
publicity rights, trademark, trade dress, identity, and signature, including but not limited to the
11
considerable goodwill attached to his name as an artist and community member (Rights) in the
12
Calendar and otherwise to advertise, market, and promote Defendants commercial companies, homes
13
offered for sale, and other products and services.
14
126.
At no time did Plaintiff Norris ever give permission to Defendants, or any of them, to
15
reproduce, distribute, or make derivative works based upon his Rights in the Calendar or otherwise to
16
associate with, advertise, market, or promote Defendants companies, products, or services, or for any
17
other purpose.
18
19
20
21
22
127.
Plaintiff Norris has not received any compensation for such unauthorized commercial use
of his Rights to advertise, market, and promote Defendants companies, products, and services.
128.
Plaintiff Norris alleges that his copyrights have been infringed by Defendants
unauthorized reproductions of El Toreador in the Calendar.

129.
Plaintiff Norris alleges that, because a reasonable consumer would assume that Zephyr
23
properly licensed El Toreador rather than copying it without permission, the Calendar falsely implies
24
that Plaintiff Norris agreed to endorse or affiliate himself with Zephyr and the sale of luxury real estate
25
in San Francisco, thus harming his reputation for artistic integrity and diminishing the market for future
26
licensing of his work in violation of the Lanham Act.
27
28
130.
Plaintiff Norris is informed and believes, and based thereon alleges, that Defendants
- 26 -
COMPLAINT
Plaintiff Norris endorsed, sponsored, or is affiliated with Zephyr will make it more difficult for him to
with his beliefs.

Looking In and Through
5
6
131.
Plaintiffs Sultan and Badger Sultan (collectively, the Sultan Plaintiffs) authored the mural
Looking In and Through (Looking) with the assistance of their two children in 2008. True and
correct images of Looking are shown below and in Exhibit F, pp. 11-12.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
/ / /
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/ / /
27
/ / /
28
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- 27 -
COMPLAINT
1
2
3
4
5
6
7
8
9
10
132.
Plaintiff Badger Sultan has been an exhibiting artist since 1969, creating art from inner
11
experiences and bringing them into relationship with timeless human spiritual and emotional realities.
12
She taught in the Art Department of City College of San Francisco from 1974 until her retirement in
13
2006. As a full-time teacher, she taught drawing, design, color and painting.
14
133.
Plaintiff Sultan has been exhibiting his art professionally, locally, nationally, and
15
internationally since 1966. He also has been a community muralist since 1976, teaches art, and is on
16
the Board of Directors of Precita Eyes Muralist Association founded by Plaintiff Cervantes.
17
134.
The Sultan Plaintiffs painted Looking on the fence of their home/artist studio on 30th
18
Street at Sanchez Street (not Day Street at Sanchez Street, as specified in the Calendar) in the Noe
19
Valley neighborhood, where they have participated in Open Studios artist tours for the past several
20
decades.
21
135.
Defendants used Looking in the Calendar for the month of August as shown below (see
22
also Exhibit B, p. 10) and in the Video (see Exhibit E, p. 10).
23
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24
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25
/ / /
26
/ / /
27
/ / /
28
/ / /
- 28 -
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
136.
Mere steps from the dining, shopping and conveniences of bustling 24th Street,
this Mediterranean-style home features four bedrooms and three and one-half
baths on three levels of living space. The beauty and grace of the interior living
space continues outdoors to the magical garden featuring a Koi pond, mature
flowering trees and sensational City skyline views.
18
19
20
21
137.

The median sales price for homes in Noe Valley, San Francisco for Sep 13 to Dec
13 was $1,380,000 based on 51 sales. Compared to the same period one year ago,
the median sales price increased 4.2%, or $55,000, and the number of sales
decreased 7.3%. Average price per square foot for Noe Valley was $1,042, an
increase of 7.4% compared to the same period last year.
22
23
24
25
The description of the house advertised with this mural in the Calendar is:
138.
The Sultan Plaintiffs have lived in Noe Valley since 1986. They are committed to the
26
neighborhood and distressed by the current trends that make the city less and less affordable as real
27
estate prices continue to escalate.
28
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- 29 -
COMPLAINT
1
2
3
139.
In or about January 2013, Plaintiff Sultan was provided a copy of the Calendar from his
neighbor whose sister, living in Pittsburg, California, received the Calendar in the mail.
140.
Looking is a creative work of art that constitutes copyrightable subject matter under the
Copyright Act, 17 U.S.C. 101 et seq. The Sultan Plaintiffs registered copyright in Looking on
March 25, 2013, reflected in Certificate of Registration No. VAU 1-145-775, a copy of which is
attached hereto as Exhibit G, pp. 10-11.
141.
By reason of the foregoing, the Sultan Plaintiffs now enjoy the exclusive rights and
privileges in and to the copyright in Looking, and are, and at all times material hereto were, the joint
owners of all right, title, and interest in and to Looking.
10
142.
As the sole owners of all right, title and interest in and to the copyright in Looking, the
11
Sultan Plaintiffs have, and all relevant times have had, all of the exclusive rights, as set forth in 17
12
U.S.C. 106, to, among other things, prepare derivative works based on Looking or to transfer these
13
rights to third parties. Neither of the Sultan Plaintiffs has assigned the copyright in Looking to any other
14
person or entity.
15
143.
Looking has a copyright notice identifying the Sultans as its authors. This copyright
16
notice can be seen in the bottom left corner of the photo of Looking used in the Calendar (see above
17
image from the Calendar and Exhibit F, p. 11 for a close up photo of this copyright notice).
18
144.
Although the Calendar correctly identifies the name of the mural and the family name of
19
its authors, Defendants never contacted either of the Sultan Plaintiffs or secured permission to use
20
Looking in the Calendar or Video.
21
145.
Though sfmuralarts.com does not provide a website or contact information for the Sultan
22
Plaintiffs, a search of the Internet for "Looking in and Through" immediately brings up Plaintiff Badger
23
Sultans website www.jennybadgersultan.com which provides her email address.
24
146.
Defendants prominently used the Sultan Plaintiffs copyrighted mural, identity, persona,
25
26
considerable goodwill attached to their names as artists and community member (Rights) in the
27
28

- 30 -
COMPLAINT
147.
At no time did the Sultan Plaintiffs ever give permission to Defendants, or any of them,
to reproduce, distribute, or make derivative works based upon their Rights in the Calendar or otherwise
to associate with, advertise, market, or promote Defendants companies, products, or services, or for
any other purpose.
148.
The Sultan Plaintiffs have not received any compensation for such unauthorized
commercial use of their Rights to advertise, market, and promote Defendants companies, products, and
services.
149.
9
10
11
The Sultan Plaintiffs allege that their copyrights have been infringed by Defendants
unauthorized reproductions of Looking in the Calendar, and republication of the Calendar in other
media to be determined at trial.
150.
The Sultan Plaintiffs allege that, because a reasonable consumer would assume that
12
Zephyr properly licensed Looking rather than copying it without permission, the Calendar falsely
13
implies that the Sultan Plaintiffs agreed to endorse or affiliate themselves with Zephyr and the sale of
14
luxury real estate in San Francisco, thus harming their reputation for artistic integrity and diminishing
15
the market for future licensing of their work in violation of the Lanham Act.
16
151.
The Sultan Plaintiffs are informed and believe, and based thereon allege, that Defendants
17
infringement of their Rights in connection with the Calendar and otherwise, has harmed and continues
18
to harm them by diminishing their reputation for artistic and community integrity. The perception that
19
the Sultan Plaintiffs endorsed, sponsored, or are affiliated with Zephyr will make it more difficult for
20
them to obtain community grants or enter into appropriate and ethical license agreements that are
21
consistent with their beliefs.

A New Dawn (Naya Bihana)
22
23
152.
Plaintiff Travers authored the mural A New Dawn (Naya Bihana) (New Dawn), a true
24
and correct image of which is below and in Exhibit F, p. 13.
25
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26
/ / /
27
/ / /
28
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- 31 -
COMPLAINT
1
2
3
4
5
6
7
8
9
10
153.
Since its creation in 2002, New Dawn has been an iconic mural and many have sought
11
permission to use it in creative and commercial works including an advertisement for the New York
12
Times. Often photographed and listed as a must-see Mission District mural, it is about a community
13
resisting injustice, learning self-sufficiency and regaining local power.
14
154.
Plaintiff Travers travels the world painting murals and working on community arts
15
projects, giving workshops on culturally diverse developmental arts. His goal is to work towards
16
building positive creative alternatives for at risk youth and communities.
17
18
19
155.
Plaintiff Travers painted New Dawn on Balmy Alley (on the rear yard fence of the house
at 1106 Treat Street) in San Franciscos Mission District neighborhood.

156.
Defendants used a portion of New Dawn in the Calendar for the month of June as shown
20
below (see also Exhibit B, p. 8) and on the cover of the Calendar for the letter R (Exhibit B, p. 1),
21
and used a bigger part of New Dawn in the Video, a screenshot of which is shown in Exhibit E, p. 16.
22
/ / /
23
/ / /
24
/ / /
25
/ / /
26
/ / /
27
/ / /
28
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- 32 -
COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
157.
18
is as follows:
19
A perfect blend of history and modern innovation comprise this remodeled

Victorian. The hip kitchen opens directly to the serene garden with its brick patio,
built-in barbecue and romantic palms. Three bedrooms, two and one-half baths,
formal entry, modern finishes and period details are just the beginning. In a city
where the WalkScore is key, this one boasts a 94, a walkers paradise!
20
21
22
158.
23

The median sales price for homes in Mission, San Francisco for Sep 13 to Dec 13
[2013] was $940,000 based on 28 sales. Compared to the same period one year
ago, the median sales price increased 9.3%, or $80,000, and the number of sales
increased 55.6%. Average price per square foot for Mission was $807, an increase
of 26.9% compared to the same period last year.
24
25
26
The description of the Mission District house advertised with this mural in the Calendar
159.
New Dawn is a creative work of art that constitutes copyrightable subject matter under
27
the Copyright Act, 17 U.S.C. 101 et seq. Plaintiff Travers registered the copyright in New Dawn with
28
a completion date of 2002, and secured Certificate of Registration No. VA 1-773-670, a copy of which
- 33 -
COMPLAINT
is attached hereto as Exhibit G, p. 12. The registration date for New Dawn is May 12, 2011 which is
prior to the infringing use by Defendants.
160.
By reason of the foregoing, Plaintiff Travers now enjoys the exclusive rights and
privileges in and to the copyright in New Dawn, and is, and at all times material hereto were, the sole
owner of all right, title, and interest in and to New Dawn.
161.
As the sole owner of all right, title and interest in and to the copyright in New Dawn,
Plaintiff Travers has, and all relevant times have had, all of the exclusive rights, as set forth in 17
U.S.C. 106, to, among other things, prepare derivative works based on New Dawn or to transfer these
rights to third parties. Plaintiff Travers has never assigned the copyright in New Dawn to any other
10
11
12
13
person or entity.
162.
Defendants correctly identified Plaintiff Travers and listed his website
www.martintravers.com in the Calendar, but never contacted him through the website.
163.
Plaintiff Travers is very selective about licensing New Dawn for projects that reflect its
14
message of a community resisting injustice, learning self-sufficiency and regaining local power.
15
Plaintiff Travers recently permitted images of this mural to be used in the trailer for the film-in-
16
progress, The Fifth Sacred Thing, because the films message (a struggle by a utopian society against
17
an invasion by an authoritarian and corporate-driven force) is aligned with that of New Dawn.
18
164.
19
its Calendar.
20
165.
21
22
Plaintiff Travers never licensed or otherwise consented to Zephyrs use of New Dawn in
Plaintiff Travers reputation as a community artist and activist was harmed by the
appearance that he licensed his work to Zephyr to advertise luxury real estate.
166.
Defendants prominently used Plaintiff Travers copyrighted mural, identity, persona,
23
24
considerable goodwill attached to his name as an artist and community member (Rights) in the
25
26
27
28
167.
At no time did Plaintiff Travers ever give permission to Defendants, or any of them, to
reproduce, distribute, or make derivative works based upon his Rights in the Calendar or otherwise to
- 34 -
COMPLAINT
associate with, advertise, market, or promote Defendants companies, products, or services, or for any
other purpose.
3
4
5
168.
Plaintiff Travers has not received any compensation for such unauthorized commercial
use of his Rights to advertise, market, and promote Defendants companies, products, and services.
169.
Plaintiff Travers alleges that his copyrights have been infringed by Defendants
unauthorized reproductions of New Dawn in the Calendar, and republication of the Calendar in other
media to be determined at trial.
8
9
170.
Plaintiff Travers alleges that, because a reasonable consumer would assume that Zephyr
properly licensed New Dawn rather than copying it without permission, the Calendar falsely implies
10
that Plaintiff Travers agreed to endorse or affiliate himself with Zephyr and the sale of luxury real
11
estate in San Francisco, thus harming his reputation for artistic integrity and diminishing the market for
12
future licensing of his work in violation of the Lanham Act.
13
171.
Plaintiff Travers is informed and believes, and based thereon alleges, that Defendants
14
15
16
Plaintiff Travers endorsed, sponsored, or is affiliated with Zephyr will make it more difficult for him to
17
18
with his beliefs.
20
FIRST CAUSE OF ACTION

COPYRIGHT INFRINGEMENT CALENDAR
[17 U.S.C. 501]
21
Plaintiff Aquino vs. All Defendants
19
22
23
24
172.
Plaintiff Aquino repeats and realleges the allegations of paragraphs 1 through 171 as
though fully set forth herein.

173.
Plaintiff Aquino and David Cho hold a valid copyright registration to the Chinatown
25
Mural that is the subject of this action and that is referenced by the copyright registration certificate
26
27
28
174.
Defendants reproduced, distributed, displayed, and created derivative works of the
Chinatown Mural in the Calendar.

- 35 -
COMPLAINT
1
2
3
175.
Defendants reproduced, distributed, displayed, and created derivative works of the
Chinatown Mural in the Calendar for the commercial purpose of selling luxury real estate.
176.
Defendants did not seek or obtain the permission of Plaintiff Aquino or David Cho for
such reproduction, distribution, display, or the creation of derivative works of the Chinatown Mural in
Defendants Calendar.
6
7
8
9
177.
Such actions and conduct by Defendants constitute copyright infringement under Section
501 of the Copyright Act, 17 U.S.C. 501.

178.
As a direct and proximate result of the conduct of Defendants, Plaintiff Aquino is
entitled, pursuant to 17 U.S.C. 504, to the recovery of: (1) Defendants profits from the sale of their
10
products and services, the precise amount of which shall be established by Plaintiff Aquino at trial; and
11
(2) damages sustained by Plaintiff Aquino as a result of Defendants conduct, the precise amount of
12
which shall be established by Plaintiff Aquino at trial.

Plaintiff Caron vs. All Defendants
13
14
15
16
17
18
19
20
21
22
23
24
25
26
179.
Plaintiff Caron repeats and realleges the allegations of paragraphs 1 through 178 as

180.
Plaintiff Caron holds a valid copyright registration to Bikeway that is the subject of this
action and that is referenced by the copyright registration certificate attached hereto as Exhibit G, p. 3.
181.
Defendants reproduced, distributed, displayed, and created derivative works of Bikeway
in the Calendar.
182.
Defendants reproduced, distributed, displayed, and created derivative works of Bikeway
in the Calendar for the commercial purpose of selling luxury real estate.
183.
Defendants did not seek or obtain the permission of Plaintiff Caron for such reproduction,
distribution, display, or the creation of derivative works of Bikeway in Defendants Calendar.

184.

185.
As a direct and proximate result of the conduct of Defendants, Plaintiff Caron is entitled,
27
pursuant to 17 U.S.C. 504, to the recovery of: (1) Defendants profits from the sale of their products
28
and services, the precise amount of which shall be established by Plaintiff Caron at trial; and (2)
- 36 -
COMPLAINT
damages sustained by Plaintiff Caron as a result of Defendants conduct, the precise amount of which
shall be established by Plaintiff Caron at trial.

Plaintiff Cervantes vs. All Defendants
3
4
5
6
186.
Plaintiff Cervantes repeats and realleges the allegations of paragraphs 1 through 185 as

187.
Plaintiff Cervantes and Judith Jamerson hold a valid copyright registration to Spirit
Mural that is the subject of this action and that is referenced by the copyright registration certificate
9
10
11
12
13
188.
Defendants reproduced, distributed, displayed, and created derivative works of Spirit
Mural in the Calendar.

189.
Defendants reproduced, distributed, displayed, and created derivative works of Spirit
Mural in the Calendar for the commercial purpose of selling luxury real estate.
190.
Defendants did not seek or obtain the permission of Plaintiff Cervantes or Judith
14
Jamerson for such reproduction, distribution, display, or the creation of derivative works of Spirit
15
Mural in Defendants Calendar.
16
17
18
191.

192.
As a direct and proximate result of the conduct of Defendants after the date of Plaintiff
19
Cervantes federal copyright registration, Plaintiff Cervantes is entitled, pursuant to 17 U.S.C. 412
20
and 504, to the recovery of: (1) Defendants profits from the sale of their products and services, the
21
precise amount of which shall be established by Plaintiff Cervantes at trial; (2) damages sustained by
22
Plaintiff Cervantes as a result of Defendants conduct, the precise amount of which shall be established
23
by Plaintiff Cervantes at trial; (3) statutory damages; and (4) Plaintiff Cervantes costs of suit.
Plaintiff Martinez vs. All Defendants
24
25
193.
Plaintiff Martinez repeats and realleges the allegations of paragraphs 1 through 192 as
26
27
/ / /
28
/ / /
- 37 -
COMPLAINT
194.
Plaintiff Martinez holds a valid copyright registration to the North Beach Mural that is
the subject of this action and that is referenced by the copyright registration certificate attached hereto
as Exhibit G, pp. 7-8.
4
5
6
7
8
9
10
11
12
13
195.
Defendants reproduced, distributed, displayed, and created derivative works of the North
Beach Mural in the Calendar.

196.
Defendants reproduced, distributed, displayed, and created derivative works of the North
Beach Mural in the Calendar for the commercial purpose of selling luxury real estate.
197.
Defendants did not seek or obtain the permission of Plaintiff Martinez or Albert Reyes
for such reproduction, distribution, display, or the creation of derivative works of the North Beach
Mural in Defendants Calendar.
198.

199.
As a direct and proximate result of the conduct of Defendants, Plaintiff Martinez is
14
15
products and services, the precise amount of which shall be established by Plaintiff Martinez at trial;
16
and (2) damages sustained by Plaintiff Martinez as a result of Defendants conduct, the precise amount
17
of which shall be established by Plaintiff Martinez at trial.

Plaintiff Norris vs. All Defendants
18
19
20
21
200.
Plaintiff Norris repeats and realleges the allegations of paragraphs 1 through 199 as

201.
Plaintiff Norris holds a valid copyright registration to El Toreador that is the subject of
22
this action and that is referenced by the copyright registration certificate attached hereto as Exhibit G,
23
p. 9.
24
25
26
202.
Defendants reproduced, distributed, displayed, and created derivative works of El
Toreador in the Calendar.

203.
Defendants reproduced, distributed, displayed, and created derivative works of El
27
Toreador in the Calendar for the commercial purpose of selling luxury real estate.
28
/ / /
- 38 -
COMPLAINT
204.
Defendants did not seek or obtain the permission of Plaintiff Norris for such
reproduction, distribution, display, or the creation of derivative works of El Toreador in Defendants
Calendar.
4
5
6
205.

206.
As a direct and proximate result of the conduct of Defendants, Plaintiff Norris is entitled,
and services, the precise amount of which shall be established by Plaintiff Norris at trial; and (2)
damages sustained by Plaintiff Norris as a result of Defendants conduct, the precise amount of which
10
shall be established by Plaintiff Norris at trial.

Sultan Plaintiffs vs. All Defendants
11
12
13
14
207.
Plaintiffs Sultan and Badger Sultan repeat and reallege the allegations of paragraphs 1
through 206 as though fully set forth herein.

208.
The Sultan Plaintiffs hold a valid copyright registration to Looking that is the subject of
15
16
pp. 10-11.
17
18
19
20
21
209.
Defendants reproduced, distributed, displayed, and created derivative works of Looking
in the Calendar.
210.
Defendants reproduced, distributed, displayed, and created derivative works of Looking
in the Calendar for the commercial purpose of selling luxury real estate.
211.
Defendants did not seek or obtain the permission of the Sultan Plaintiffs for such
22
reproduction, distribution, display, or the creation of derivative works of Looking in Defendants
23
Calendar.
24
25
26
212.

213.
As a direct and proximate result of the conduct of Defendants, the Sultan Plaintiffs are
27
28
products and services, the precise amount of which shall be established by the Sultan Plaintiffs at trial;
- 39 -
COMPLAINT
and (2) damages sustained by the Sultan Plaintiffs as a result of Defendants conduct, the precise
amount of which shall be established by the Sultan Plaintiffs at trial.

Plaintiff Travers vs. All Defendants
3
4
5
6
214.
Plaintiff Travers repeats and realleges the allegations of paragraphs 1 through 213 as

215.
Plaintiff Travers holds a valid copyright registration to New Dawn that is the subject of
p. 12.
9
10
11
12
13
216.
Defendants reproduced, distributed, displayed, and created derivative works of New
Dawn in the Calendar.

217.
Defendants reproduced, distributed, displayed, and created derivative works of New
Dawn in the Calendar for the commercial purpose of selling luxury real estate.
218.
Defendants did not seek or obtain the permission of Plaintiff Travers for such
14
reproduction, distribution, display, or the creation of derivative works of New Dawn in Defendants
15
Calendar.
16
17
18
219.

220.
As a direct and proximate result of the conduct of Defendants after the date of Plaintiff
19
Travers federal copyright registration, Plaintiff Travers is entitled, pursuant to 17 U.S.C. 412 and
20
504, to the recovery of: (1) Defendants profits from the sale of their products and services, the precise
21
amount of which shall be established by Plaintiff Travers at trial; (2) damages sustained by Plaintiff
22
Travers as a result of Defendants conduct, the precise amount of which shall be established by Plaintiff
23
Travers at trial; (3) statutory damages; and (4) Plaintiff Travers costs of suit.
25
SECOND CAUSE OF ACTION

COPYRIGHT INFRINGEMENT - VIDEO
[17 U.S.C. 501]
26
Plaintiff Caron vs. All Defendants
24
27
28
221.

- 40 -
COMPLAINT
1
2
3
4
5
6
7
222.
Defendants reproduced, distributed, displayed, and created derivative works of Plaintiff
Carons Bikeway in the Video for the commercial purpose of advertising real estate.
223.
Defendants did not seek or obtain Plaintiff Carons permission for such reproduction,
distribution, display, or the creation of derivative works of Bikeway in Defendants Video.

224.

225.
and services, the precise amount of which shall be established by Plaintiff Caron at trial; and (2)
10
11
shall be established by Plaintiff Caron at trial.

Plaintiff Cervantes vs. All Defendants
12
13
14
15
226.
Plaintiff Cervantes repeats and realleges the allegations of paragraphs 1 through 225 as

227.
16
Cervantes and Judith Jamersons Spirit Mural in the Video for the commercial purpose of advertising
17
real estate.
18
228.
Defendants did not seek or obtain Plaintiff Cervantes or Judith Jamersons permission
19
for such reproduction, distribution, display, or the creation of derivative works of their mural in
20
Defendants Video.
21
22
23
229.

230.
As a direct and proximate result of the conduct of Defendants after the date of her federal
24
copyright registration, Plaintiff Cervantes is entitled, pursuant to 17 U.S.C. 412 and 504, to the
25
recovery of: (1) Defendants profits from the sale of their products and services, the precise amount of
26
which shall be established by Plaintiff Cervantes at trial; (2) damages sustained by Plaintiff Cervantes
27
as a result of Defendants conduct, the precise amount of which shall be established by Plaintiff
28
Cervantes at trial; (3) statutory damages; and (4) Plaintiff Cervantes costs of suit.
- 41 -
COMPLAINT
Plaintiff Martinez vs. All Defendants
1
2
3
4
5
6
231.

232.
Martinez North Beach Mural in the Video for the commercial purpose of advertising real estate.
233.
Defendants did not seek or obtain Plaintiff Martinez or Albert Reyes permission for
such reproduction, distribution, display, or the creation of derivative works of the North Beach Mural
in Defendants Video.
9
10
11
234.

235.
12
13
products and services, the precise amount of which shall be established by Plaintiff Martinez at trial;
14
and (2) damages sustained by Plaintiff Martinez as a result of Defendants conduct, the precise amount
15
of which shall be established by Plaintiff Martinez at trial.

Sultan Plaintiffs vs. All Defendants
16
17
18
19
20
21
22
23
24
25
236.
Plaintiffs Sultan and Badger Sultan repeat and reallege the allegations of paragraphs 1
through 235 as though fully set forth herein.

237.
Defendants reproduced, distributed, displayed, and created derivative works of Sultan
Plaintiffs Looking in the Video for the commercial purpose of advertising real estate.
238.
Defendants did not seek or obtain Sultan Plaintiffs permission for such reproduction,
distribution, display, or the creation of derivative works of Looking in Defendants Video.

239.

240.
As a direct and proximate result of the conduct of Defendants, the Sultan Plaintiffs are
26
27
products and services, the precise amount of which shall be established by the Sultan Plaintiffs at trial;
28
/ / /
- 42 -
COMPLAINT
and (2) damages sustained by the Sultan Plaintiffs as a result of Defendants conduct, the precise
amount of which shall be established by the Sultan Plaintiffs at trial.

Plaintiff Travers vs. All Defendants
3
4
5
6
7
8
9
10
11
12
241.

242.
Travers New Dawn in the Video for the commercial purpose of advertising real estate.
243.
Defendants did not seek or obtain Plaintiff Travers permission for such reproduction,
distribution, display, or the creation of derivative works of New Dawn in Defendants Video.
244.

245.
As a direct and proximate result of the conduct of Defendants after the date of his federal
13
copyright registration, Plaintiff Travers is entitled, pursuant to 17 U.S.C. 412 and 504, to the
14
recovery of: (1) Defendants profits from the sale of their products and services, the precise amount of
15
which shall be established by Plaintiff Travers at trial; (2) damages sustained by Plaintiff Travers as a
16
result of Defendants conduct, the precise amount of which shall be established by Plaintiff Travers at
17
trial; (3) statutory damages; and (4) Plaintiff Travers costs of suit.
19
THIRD CAUSE OF ACTION

TRADEMARK INFRINGEMENT/FALSE ASSOCIATION
[15 U.S.C. 1125 et seq.]
20
Plaintiff Aquino vs. all Defendants
18
21
22
23
246.

247.
Plaintiff Aquino owns all title in and to his Rights. The Lanham Act protects Plaintiff
24
Aquinos Rights against false endorsement by Defendants. Waits v. Frito-Lay, 978 F.2d 1093, 1110
25
(9th Cir. Cal. 1992), amended on other grounds and petition for rehearing rejected by 1992 U.S.
26
LEXIS 17675, cert denied Frito-Lay, Inc. v. Waits, 506 U.S. 1080 (1993).
27
28
248.
Defendants used Plaintiff Aquinos Rights in the Calendar which was distributed through
interstate commerce by mail.

- 43 -
COMPLAINT
249.
Plaintiff Aquino did not consent to Defendants use of his Rights in commerce.
250.
Defendants use in interstate commerce of Plaintiff Aquinos Rights in the Calendar, in
connection with Defendants luxury real estate, constitutes a violation of 15 U.S.C. 1125(a), in that it
creates a false association of Plaintiff Aquino and his Rights with Defendants companies, products,
and services, and a false designation of origin as to the goods and services advertised, marketed,
promoted, distributed, offered for sale, and sold by Defendants. Defendants use of Plaintiff Aquinos
Rights in the Calendar is likely to confuse, mislead, and/or deceive the consuming public and trade by
creating the false impression that Defendants real estate services are or were approved, sponsored,
endorsed, or are in some way affiliated or associated with Plaintiff Aquino.
10
11
12
251.
Plaintiff Aquino was harmed because the Calendar harmed his reputation for artistic
integrity and diminished the market for future licensing of his work.
252.
As a direct and proximate result of the conduct of Defendants, Plaintiff Aquino is
13
entitled, pursuant to 15 U.S.C. 1117(a), to the recovery of: (1) Defendants profits from the sale of
14
their products and services, the precise amount of which shall be established by Plaintiff Aquino at
15
trial; (2) damages sustained by Plaintiff Aquino as a result of Defendants conduct, the precise amount
16
of which shall be established by Plaintiff Aquino at trial; and (3) Plaintiff Aquinos costs of suit.
Plaintiff Caron vs. all Defendants
17
18
19
20
253.

254.
Plaintiff Caron owns all title in and to her Rights. The Lanham Act protects Plaintiff
21
Carons Rights against false endorsement by Defendants. Waits v. Frito-Lay, 978 F.2d 1093, 1110 (9th
22
Cir. Cal. 1992), amended on other grounds and petition for rehearing rejected by 1992 U.S. LEXIS
23
17675, cert denied Frito-Lay, Inc. v. Waits, 506 U.S. 1080 (1993).
24
25
255.
Defendants used Plaintiff Carons Rights in the Calendar which was distributed through
26
256.
Plaintiff Caron did not consent to Defendants use of her Rights in commerce.
27
257.
Defendants use in interstate commerce of Plaintiff Carons Rights in the Calendar, in
28
- 44 -
COMPLAINT
creates a false association of Plaintiff Caron and her Rights with Defendants companies, products, and
services, and a false designation of origin as to the goods and services advertised, marketed, promoted,
distributed, offered for sale, and sold by Defendants. Defendants use of Plaintiff Carons Rights in the
Calendar is likely to confuse, mislead, and/or deceive the consuming public and trade by creating the
false impression that Defendants real estate services are or were approved, sponsored, endorsed, or are
in some way affiliated or associated with Plaintiff Caron.
7
8
9
258.
Plaintiff Caron was harmed because the Calendar harmed her reputation for artistic
integrity and diminished the market for future licensing of her work.
259.
10
pursuant to 15 U.S.C. 1117(a), to the recovery of: (1) Defendants profits from the sale of their
11
products and services, the precise amount of which shall be established by Plaintiff Caron at trial; (2)
12
13
shall be established by Plaintiff Caron at trial; and (3) Plaintiff Carons costs of suit.
Plaintiff Martinez vs. all Defendants
14
15
16
17
260.

261.
Plaintiff Martinez owns all title in and to his Rights. The Lanham Act protects Plaintiff
18
Martinez Rights against false endorsement by Defendants. Waits v. Frito-Lay, 978 F.2d 1093, 1110
19
20
21
22
262.
Defendants used Plaintiff Martinez Rights in the Calendar which was distributed through
23
263.
Plaintiff Martinez did not consent to Defendants use of his Rights in commerce.
24
264.
Defendants use in interstate commerce of Plaintiff Martinez Rights in the Calendar, in
25
26
creates a false association of Plaintiff Martinez and his Rights with Defendants companies, products,
27
28
promoted, distributed, offered for sale, and sold by Defendants. Defendants use of Plaintiff Martinez
- 45 -
COMPLAINT
endorsed, or are in some way affiliated or associated with Plaintiff Martinez.
4
5
6
265.
Plaintiff Martinez was harmed because the Calendar harmed his reputation for artistic
266.
their products and services, the precise amount of which shall be established by Plaintiff Martinez at
trial; (2) damages sustained by Plaintiff Martinez as a result of Defendants conduct, the precise amount
10
of which shall be established by Plaintiff Martinez at trial; and (3) Plaintiff Martinez costs of suit.
Plaintiff Norris vs. all Defendants
11
12
13
14
267.

268.
Plaintiff Norris owns all title in and to his Rights. The Lanham Act protects Plaintiff
15
Norris Rights against false endorsement by Defendants. Waits v. Frito-Lay, 978 F.2d 1093, 1110 (9th
16
17
18
19
269.
Defendants used Plaintiff Norris Rights in the Calendar which was distributed through
20
270.
Plaintiff Norris did not consent to Defendants use of his Rights in commerce.
21
271.
Defendants use in interstate commerce of Plaintiff Norris Rights in the Calendar, in
22
23
creates a false association of Plaintiff Norris and his Rights with Defendants companies, products, and
24
25
distributed, offered for sale, and sold by Defendants. Defendants use of Plaintiff Norris Rights in the
26
27
28
in some way affiliated or associated with Plaintiff Norris.

- 46 -
COMPLAINT
1
2
3
272.
Plaintiff Norris was harmed because the Calendar harmed his reputation for artistic
273.
As a direct and proximate result of the conduct of Defendants, Plaintiff Norris is entitled,
products and services, the precise amount of which shall be established by Plaintiff Norris at trial; (2)
damages sustained by Plaintiff Norris as a result of Defendants conduct, the precise amount of which
shall be established by Plaintiff Norris at trial; and (3) Plaintiff Norris costs of suit.
Plaintiff Sultan vs. all Defendants
8
9
10
11
274.
Plaintiff Sultan repeats and realleges the allegations of paragraphs 1 through 273 as

275.
Plaintiff Sultan owns all title in and to his Rights. The Lanham Act protects Plaintiff
12
Sultans Rights against false endorsement by Defendants. Waits v. Frito-Lay, 978 F.2d 1093, 1110 (9th
13
14
15
16
276.
Defendants used Plaintiff Sultans Rights in the Calendar which was distributed through
17
277.
Plaintiff Sultan did not consent to Defendants use of his Rights in commerce.
18
278.
Defendants use in interstate commerce of Plaintiff Sultans Rights in the Calendar, in
19
20
creates a false association of Plaintiff Sultan and his Rights with Defendants companies, products, and
21
22
distributed, offered for sale, and sold by Defendants. Defendants use of Plaintiff Sultans Rights in the
23
24
25
in some way affiliated or associated with Plaintiff Sultan.
26
279.
Plaintiff Sultan was harmed because the Calendar harmed his reputation for artistic
27
28
/ / /
- 47 -
COMPLAINT
280.
As a direct and proximate result of the conduct of Defendants, Plaintiff Sultan is entitled,
products and services, the precise amount of which shall be established by Plaintiff Sultan at trial; (2)
damages sustained by Plaintiff Sultan as a result of Defendants conduct, the precise amount of which
shall be established by Plaintiff Sultan at trial; and (3) Plaintiff Sultans costs of suit.
Plaintiff Badger Sultan vs. all Defendants
6
7
8
9
281.
Plaintiff Badger Sultan repeats and realleges the allegations of paragraphs 1 through 280
as though fully set forth herein.

282.
Plaintiff Badger Sultan owns all title in and to her Rights. The Lanham Act protects
10
Plaintiff Badger Sultans Rights against false endorsement by Defendants. Waits v. Frito-Lay, 978 F.2d
11
1093, 1110 (9th Cir. Cal. 1992), amended on other grounds and petition for rehearing rejected by
12
1992 U.S. LEXIS 17675, cert denied Frito-Lay, Inc. v. Waits, 506 U.S. 1080 (1993).
13
14
283.
Defendants used Plaintiff Badger Sultans Rights in the Calendar which was distributed
through interstate commerce by mail.
15
284.
Plaintiff Badger Sultan did not consent to Defendants use of her Rights in commerce.
16
285.
Defendants use in interstate commerce of Plaintiff Badger Sultans Rights in the
17
Calendar, in connection with Defendants luxury real estate, constitutes a violation of 15 U.S.C.
18
1125(a), in that it creates a false association of Plaintiff Badger Sultan and her Rights with Defendants
19
companies, products, and services, and a false designation of origin as to the goods and services
20
advertised, marketed, promoted, distributed, offered for sale, and sold by Defendants. Defendants use
21
of Plaintiff Badger Sultans Rights in the Calendar is likely to confuse, mislead, and/or deceive the
22
consuming public and trade by creating the false impression that Defendants real estate services are or
23
were approved, sponsored, endorsed, or are in some way affiliated or associated with Plaintiff Badger
24
Sultan.
25
26
27
28
286.
Plaintiff Badger Sultan was harmed because the Calendar harmed her reputation for
artistic integrity and diminished the market for future licensing of her work.
287.
As a direct and proximate result of the conduct of Defendants, Plaintiff Badger Sultan is
- 48 -
COMPLAINT
their products and services, the precise amount of which shall be established by Plaintiff Badger Sultan
at trial; (2) damages sustained by Plaintiff Badger Sultan as a result of Defendants conduct, the precise
amount of which shall be established by Plaintiff Badger Sultan at trial; and (3) Plaintiff Badger
Sultans costs of suit.

Plaintiff Travers vs. all Defendants
5
6
7
8
9
288.

289.
Plaintiff Travers owns all title in and to his Rights. The Lanham Act protects Plaintiff
Travers Rights against false endorsement by Defendants. Waits v. Frito-Lay, 978 F.2d 1093, 1110
10
11
12
13
290.
Defendants used Plaintiff Travers Rights in the Calendar which was distributed through
14
291.
Plaintiff Travers did not consent to Defendants use of his Rights in commerce.
15
292.
Defendants use in interstate commerce of Plaintiff Travers Rights in the Calendar, in
16
17
creates a false association of Plaintiff Travers and his Rights with Defendants companies, products,
18
19
promoted, distributed, offered for sale, and sold by Defendants. Defendants use of Plaintiff Travers
20
21
22
endorsed, or are in some way affiliated or associated with Plaintiff Travers.
23
24
25
293.
Plaintiff Travers was harmed because the Calendar harmed his reputation for artistic
294.
As a direct and proximate result of the conduct of Defendants, Plaintiff Travers is
26
27
their products and services, the precise amount of which shall be established by Plaintiff Travers at
28
/ / /
- 49 -
COMPLAINT
trial; (2) damages sustained by Plaintiff Travers as a result of Defendants conduct, the precise amount
of which shall be established by Plaintiff Travers at trial; and (3) Plaintiff Travers costs of suit.
FOURTH CAUSE OF ACTION

MISAPPROPRIATION OF RIGHT OF PRIVACY/RIGHT OF PUBLICITY
[California Civil Code 3344]
6
7
8
9
10
11
295.

296.
Defendant knowingly used Plaintiff Aquinos name and signature in the Calendar to sell
luxury real estate.

297.
Defendants use of Plaintiff Aquinos name and signature did not occur in connection
with a news, public affairs, or sports account, or with a political campaign.
12
298.
Defendants did not have Plaintiff Aquinos consent to use his name or signature.
13
299.
Defendants use of Plaintiff Aquinos name and signature was directly connected to
14
15
Defendants commercial purpose.

300.
Plaintiff Aquino was harmed by the perception that Plaintiff Aquino endorsed, sponsored,
16
or is affiliated with Zephyr, which diminished his reputation for artistic and community integrity and
17
will make it more difficult for him to obtain community grants or enter into appropriate and ethical
18
license agreements that are consistent with his beliefs.
19
301.
The conduct of Defendants, as alleged hereinabove, was a substantial factor in causing
20
Plaintiff Aquinos harm, and constitutes a violation of Section 3344 of the California Civil Code, due to
21
the Defendants knowing and unauthorized use of Plaintiff Aquinos name for commercial purposes.
22
302.
As a direct and proximate result of the aforesaid acts of Defendants, Plaintiff Aquino has
23
been damaged in an amount that is not yet fully ascertainable, but which exceeds the jurisdictional
24
minimum of this Court.

25
26
303.
27
28
/ / /
- 50 -
COMPLAINT
1
2
3
4
304.
Defendant knowingly used Plaintiff Carons name and signature in the Calendar to sell
luxury real estate.

305.
Defendants use of Plaintiff Carons name and signature did not occur in connection with
a news, public affairs, or sports account, or with a political campaign.
306.
Defendants did not have Plaintiff Carons consent to use her name or signature.
307.
Defendants use of Plaintiff Carons name and signature was directly connected to
7
8
9

308.
Plaintiff Caron was harmed by the perception that Plaintiff Caron endorsed, sponsored, or
is affiliated with Zephyr, which diminished her reputation for artistic and community integrity and will
10
make it more difficult for her to obtain community grants or enter into appropriate and ethical license
11
agreements that are consistent with her beliefs.
12
309.
13
Plaintiff Carons harm, and constitutes a violation of Section 3344 of the California Civil Code, due to
14
the Defendants knowing and unauthorized use of Plaintiff Carons name for commercial purposes.
15
310.
As a direct and proximate result of the aforesaid acts of Defendants, Plaintiff Caron has
16
17

18
19
20
21
22
23
24
311.

312.
Defendant knowingly used Plaintiff Martinez name and signature in the Calendar to sell
luxury real estate.

313.
Defendants use of Plaintiff Martinez name and signature did not occur in connection
with a news, public affairs, or sports account, or with a political campaign.
25
314.
Defendants did not have Plaintiff Martinez consent to use his name or signature.
26
315.
Defendants use of Plaintiff Martinez name and signature was directly connected to
27
28
/ / /
- 51 -
COMPLAINT
316.
Plaintiff Martinez was harmed by the perception that Plaintiff Martinez endorsed,
sponsored, or is affiliated with Zephyr, which diminished his reputation for artistic and community
integrity and will make it more difficult for him to obtain community grants or enter into appropriate
and ethical license agreements that are consistent with his beliefs.
317.
Plaintiff Martinez harm, and constitutes a violation of Section 3344 of the California Civil Code, due
to the Defendants knowing and unauthorized use of Plaintiff Martinez name for commercial purposes.
8
9
10
318.
As a direct and proximate result of the aforesaid acts of Defendants, Plaintiff Martinez
has been damaged in an amount that is not yet fully ascertainable, but which exceeds the jurisdictional
11
12
13
14
15
16
17
319.

320.
Defendant knowingly used Plaintiff Norris name and signature in the Calendar to sell
luxury real estate.

321.
Defendants use of Plaintiff Norris name and signature did not occur in connection with
18
322.
Defendants did not have Plaintiff Norris consent to use his name or signature.
19
323.
Defendants use of Plaintiff Norris name and signature was directly connected to
20
21

324.
Plaintiff Norris was harmed by the perception that Plaintiff Norris endorsed, sponsored,
22
23
24
25
325.
26
Plaintiff Norris harm, and constitutes a violation of Section 3344 of the California Civil Code, due to
27
the Defendants knowing and unauthorized use of Plaintiff Norris name for commercial purposes.
28
/ / /
- 52 -
COMPLAINT
326.
As a direct and proximate result of the aforesaid acts of Defendants, Plaintiff Norris has

4
5
6
7
8
9
10
327.
Plaintiff Sultan repeats and realleges the allegations of paragraphs 1 through 326 as

328.
Defendant knowingly used Plaintiff Sultans name and signature in the Calendar to sell
luxury real estate.

329.
Defendants use of Plaintiff Sultans name and signature did not occur in connection with
11
330.
Defendants did not have Plaintiff Sultans consent to use his name or signature.
12
331.
Defendants use of Plaintiff Sultans name and signature was directly connected to
13
14

332.
Plaintiff Sultan was harmed by the perception that Plaintiff Sultan endorsed, sponsored,
15
16
17
18
333.
19
Plaintiff Sultans harm, and constitutes a violation of Section 3344 of the California Civil Code, due to
20
the Defendants knowing and unauthorized use of Plaintiff Sultans name for commercial purposes.
21
334.
As a direct and proximate result of the aforesaid acts of Defendants, Plaintiff Sultan has
22
23

24
25
26
27
28
335.
Plaintiff Badger Sultan repeats and realleges the allegations of paragraphs 1 through 334
as though fully set forth herein.

336.
Defendant knowingly used Plaintiff Badger Sultans name and signature in the Calendar
to sell luxury real estate.

- 53 -
COMPLAINT
1
2
337.
Defendants use of Plaintiff Badger Sultans name and signature did not occur in
connection with a news, public affairs, or sports account, or with a political campaign.
338.
Defendants did not have Plaintiff Badger Sultans consent to use her name or signature.
339.
Defendants use of Plaintiff Badger Sultans name and signature was directly connected
5
6
to Defendants commercial purpose.

340.
Plaintiff Badger Sultan was harmed by the perception that Plaintiff Badger Sultan
endorsed, sponsored, or is affiliated with Zephyr, which diminished her reputation for artistic and
community integrity and will make it more difficult for her to obtain community grants or enter into
appropriate and ethical license agreements that are consistent with her beliefs.
10
341.
11
Plaintiff Badger Sultans harm, and constitutes a violation of Section 3344 of the California Civil Code,
12
due to the Defendants knowing and unauthorized use of Plaintiff Badger Sultans name for
13
commercial purposes.
14
342.
As a direct and proximate result of the aforesaid acts of Defendants, Plaintiff Badger
15
Sultan has been damaged in an amount that is not yet fully ascertainable, but which exceeds the
16
jurisdictional minimum of this Court.

17
18
19
20
21
22
23
343.

344.
Defendant knowingly used Plaintiff Travers name and signature in the Calendar to sell
luxury real estate.

345.
Defendants use of Plaintiff Travers name and signature did not occur in connection with
24
346.
Defendants did not have Plaintiff Travers consent to use his name or signature.
25
347.
Defendants use of Plaintiff Travers name and signature was directly connected to
26
27
28

348.
Plaintiff Travers was harmed by the perception that Plaintiff Travers endorsed,
sponsored, or is affiliated with Zephyr, which diminished his reputation for artistic and community
- 54 -
COMPLAINT
integrity and will make it more difficult for him to obtain community grants or enter into appropriate
and ethical license agreements that are consistent with his beliefs.
349.
Plaintiff Travers harm, and constitutes a violation of Section 3344 of the California Civil Code, due to
the Defendants knowing and unauthorized use of Plaintiff Travers name for commercial purposes.
350.
As a direct and proximate result of the aforesaid acts of Defendants, Plaintiff Travers has
9
10
PRAYER FOR RELIEF

AS TO THE FIRST CAUSE OF ACTION
(Copyright Infringement - Calendar)
11
12
13
351.
For all damages to which Plaintiff Aquino may be entitled, including but not limited to
Defendants profits, in such amounts as may be found pursuant to 17 U.S.C. 504.
14
352.
For prejudgment interest according to law.
15
353.
For such other and further relief as the Court may deem proper and just.
16
17
18
354.
For all damages to which Plaintiff Caron may be entitled, including but not limited to
19
355.
20
356.
Plaintiff Cervantes vs. all Defendants
21
22
357.
For all damages to which Plaintiff Cervantes may be entitled, including but not limited to
23
Defendants profits, in such amounts as may be found pursuant to 17 U.S.C. 504. Alternatively, at
24
her sole election, for statutory damages in the maximum amount allowed by law.
25
358.
For attorneys fees and full costs and disbursements in this action.
26
359.
27
360.
28
/ / /
- 55 -
COMPLAINT
1
2
3
361.
For all damages to which Plaintiff Martinez may be entitled, including but limited to
362.
363.
6
7
8
364.
For all damages to which Plaintiff Norris may be entitled, including but not limited to
365.
10
366.
Sultan Plaintiffs vs. all Defendants
11
12
13
367.
For all damages to which Plaintiffs Sultan and Badger Sultan may be entitled, including
but not limited to Defendants profits, in such amounts as may be found pursuant to 17 U.S.C. 504.
14
368.
15
369.
16
17
370.
For all damages to which Plaintiff Travers may be entitled, including but not limited to
18
19
his sole election, for statutory damages in the maximum amount allowed by law.
20
371.
21
372.
22
373.
23
24
PRAYER FOR RELIEF

AS TO THE SECOND CAUSE OF ACTION
(Copyright Infringement Video)
25
26
27
28
374.

375.

- 56 -
COMPLAINT
376.
Plaintiff Cervantes vs. all Defendants
2
3
377.
For all damages to which Plaintiff Cervantes may be entitled, including but not limited to
her sole election, for statutory damages in the maximum amount allowed by law.
378.
379.
380.
9
10
11
381.
For all damages to which Plaintiff Martinez may be entitled, including but not limited to
12
382.
13
383.
Sultan Plaintiffs vs. all Defendants
14
15
16
384.
For all damages to which Plaintiffs Sultan and Badger Sultan may be entitled, including
but not limited to Defendants profits, in such amounts as may be found pursuant to 17 U.S.C. 504.
17
385.
18
386.
19
20
387.
21
profits, in such amounts as may be found pursuant to 17 U.S.C. 504. Alternatively, at his sole
22
election, for statutory damages in the maximum amount allowed by law.
23
388.
24
389.
25
390.
26
/ / /
27
/ / /
28
/ / /
- 57 -
COMPLAINT
1
2
PRAYER FOR RELIEF

AS TO THE THIRD CAUSE OF ACTION
(Trademark Infringement/False Association)
4
5
391.
For all damages to which Plaintiff Aquino may be entitled, including but not limited to
profits, in such amounts as may be found pursuant to 15 U.S.C. 1117 and 15 U.S.C. 1125.
392.
For attorneys fees, and full costs and disbursements in this action.
393.
394.
9
10
395.
11
Defendants profits, in such amounts as may be found pursuant to 15 U.S.C. 1117 and 15 U.S.C.
12
1125.
13
396.
14
397.
15
398.
16
17
399.
For all damages to which Plaintiff Martinez may be entitled, including but not limited to
18
19
1125.
20
400.
21
401.
22
402.
23
24
403.
For all damages to which Plaintiff Norris may be entitled, including but not limited to
25
26
1125.
27
404.
28
405.

- 58 -
COMPLAINT
406.
2
3
407.
For all damages to which Plaintiff Sultan may be entitled, including but not limited to
1125.
408.
409.
410.
9
10
411.
For all damages to which Plaintiff Badger Sultan may be entitled, including but not
11
limited to Defendants profits, in such amounts as may be found pursuant to 15 U.S.C. 1117 and 15
12
U.S.C. 1125.
13
412.
14
413.
15
414.
16
17
415.
18
19
1125.
20
416.
21
417.
22
418.
23
PRAYER FOR RELIEF

AS TO THE FOURTH CAUSE OF ACTION
(Misappropriation of Right of Publicity)
24
25
26
419.
For general and special damages in accordance with proof at trial.
27
420.
28
421.
For Plaintiff Aquinos attorneys fees, and full costs and disbursements in this action.
- 59 -
COMPLAINT
422.
2
3
423.
424.
425.
For Plaintiff Carons attorneys fees, and full costs and disbursements in this action.
426.
7
8
427.
428.
10
429.
For Plaintiff Martinez attorneys fees, and full costs and disbursements in this action.
11
430.
12
13
431.
14
432.
15
433.
For Plaintiff Norris attorneys fees, and full costs and disbursements in this action.
16
434.
17
18
435.
19
436.
20
437.
For Plaintiff Sultans attorneys fees, and full costs and disbursements in this action.
21
438.
22
23
439.
24
440.
25
441.
For Plaintiff Badger Sultans attorneys fees, and full costs and disbursements in this
26
27
28
action.
442.
/ / /
- 60 -
COMPLAINT
1
2
443.
444.
445.
For Plaintiff Travers attorneys fees, and full costs and disbursements in this action.
446.
6
7
Dated: January 6, 2015
50 BALMY LAW P.C.
8
By:
9
10
11
12
13
/Brooke Oliver/
Brooke Oliver, Esq.
Rosaclaire Baisinger, Esq.
Attorneys for Plaintiffs FRANCISCO
AQUINO, MONA CARON, SUSAN KELK
CERVANTES, JETRO MARTINEZ,
SIRRON NORRIS, HENRY SULTAN,
JENNIFER BADGER SULTAN, and
MARTIN TRAVERS
14
DEMAND FOR JURY TRIAL
15
16
Plaintiffs hereby demand trial by jury.
17
18
Dated: January 6, 2015
50 BALMY LAW P.C.
19
By:
20
21
22
23
24
/Brooke Oliver/
Brooke Oliver, Esq.
Rosaclaire Baisinger, Esq.
Attorneys for Plaintiffs FRANCISCO
AQUINO, MONA CARON, SUSAN KELK
CERVANTES, JETRO MARTINEZ,
SIRRON NORRIS, HENRY SULTAN,
JENNIFER BADGER SULTAN, and
MARTIN TRAVERS
25
26
27
28
- 61 -
COMPLAINT

Aquino v. Zephyr Real Estate - San Francisco Muralists Complaint PDF

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Case3:15-cv-00060 Document1 Filed01/06/15 Page1 of 61

BROOKE OLIVER, ESQ. (SBN 172828)

FRANCISCO AQUINO, an individual;

DEMAND FOR JURY TRIAL

Case3:15-cv-00060 Document1 Filed01/06/15 Page2 of 61

California and DOES 1-10, inclusive (collectively, Defendants), allege as follows:

December (collectively, the Murals).

their original artwork in the Calendar.

Case3:15-cv-00060 Document1 Filed01/06/15 Page3 of 61

12. Sfmuralarts.com is an educational, noncommercial website dedicated to documenting and

copyright, trademark, patent or other proprietary right of any party. See

http://www.sfmuralarts.com/terms.html, paragraph 6.2.5.

and the Video are attached hereto as Exhibit E.

over 30 percent from the prior year. Exhibit A.

Case3:15-cv-00060 Document1 Filed01/06/15 Page4 of 61

that Zephyr had ceased distribution of the Calendar.

approximately 625 copies of the Calendar.

infringement, false endorsement and violates their rights of rights of publicity.

25. Plaintiff Francis Aquino (Aquino) (known professionally as Twick) is an individual

Case3:15-cv-00060 Document1 Filed01/06/15 Page5 of 61

month of February. Exhibit B, p. 4.

December. Exhibit B, p. 14.

Calendar for the month of August Exhibit B, p. 10.

Case3:15-cv-00060 Document1 Filed01/06/15 Page6 of 61

course and scope of such agency and employment.

FACTS AS TO EACH INFRINGED MURAL

Untitled Mural in Chinatown

correct image of which is shown below and in Exhibit F, p. 1.

Case3:15-cv-00060 Document1 Filed01/06/15 Page7 of 61

program to teach mural painting to youth as an alternative to graffiti. He is a longtime collaborator

and escalating real estate prices in San Francisco.

Calendar, but did not identify co-author David Cho.

Case3:15-cv-00060 Document1 Filed01/06/15 Page8 of 61

Case3:15-cv-00060 Document1 Filed01/06/15 Page9 of 61

Chinatown Mural or to transfer these rights to third parties.

Plaintiff Aquino through the San Francisco Arts Commission.

Case3:15-cv-00060 Document1 Filed01/06/15 Page10 of 61

sale, and other products and services.

otherwise to associate with, advertise, market, or promote Defendants companies, products, or

services, or for any other purpose.

with his beliefs.

The Duboce Bikeway Mural

Case3:15-cv-00060 Document1 Filed01/06/15 Page11 of 61

Case3:15-cv-00060 Document1 Filed01/06/15 Page12 of 61

(http://www.processedworld.com/Issues/issue2001/pw2001_70-77_Wiggle_Mural.pdf): The Duboce

Case3:15-cv-00060 Document1 Filed01/06/15 Page13 of 61

This delightful property combines opportunity with desirability in a big way.

February as shown below (see also Exhibit B, p. 4).

Case3:15-cv-00060 Document1 Filed01/06/15 Page14 of 61

title, and interest in and to Bikeway.

permission was sought from Ms. Caron to use images of Bikeway.

Case3:15-cv-00060 Document1 Filed01/06/15 Page15 of 61

sale, and other products and services.

licensing of her work in violation of the Lanham Act.

Family Life and Spirit of Mankind

Case3:15-cv-00060 Document1 Filed01/06/15 Page16 of 61

Case3:15-cv-00060 Document1 Filed01/06/15 Page17 of 61

ongoing mural projects throughout the Bay Area and internationally.

80. Per Trulia.com, as of December 19, 2013:

Case3:15-cv-00060 Document1 Filed01/06/15 Page18 of 61

for using the Spirit Mural in its Calendar.

provides information for this mural at http://www.sfmuralarts.com/artist/susan-kelk-cervantes/71.html,