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U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:10-cv-02503

Masterfile Corporation v. M & R USA, Inc. et al Assigned to: Judge Lynn N. Hughes Cause: 17:501 Copyright Infringement

Date Filed: 07/14/2010 Date Terminated: 08/31/2010 Jury Demand: Plaintiff Nature of Suit: 820 Copyright Jurisdiction: Federal Question

Date Filed 07/14/2010

Docket Text

1 COMPLAINT against M & R USA, Inc., Claudio Mueller (Filing fee $ 350 receipt number 0541-6643428) filed by Masterfile Corporation. (Attachments: # 1 Exhibit A, Part 1, # 2 Exhibit A, Part 2, # 3 Exhibit B, # 4 Civil Cover Sheet)(Matheny, Anthony) (Entered: 07/14/2010) 2 ORDER FOR CONFERENCE. Initial Conference set for 10/4/2010 at 11:00 AM in Room 11122 before Judge Lynn N. Hughes.(Signed by Judge Lynn N. Hughes) Parties notified.(rosaldana) (Entered: 07/15/2010) 3 Commissioner of Patents and Trademarks, AO-120, Notified, filed.(rosaldana) (Entered: 07/20/2010) 4 CERTIFICATE OF INTERESTED PARTIES by Masterfile Corporation, filed. (Matheny, Anthony) (Entered: 07/29/2010) Summons Issued as to M & R USA, Inc., filed.(jdav, ) (Entered: 08/17/2010) Summons Issued as to Claudio Mueller, filed.(jdav, ) (Entered: 08/17/2010) 5 RETURN of Service of SUMMONS Executed as to M & R USA, Inc. served on 8/17/2010, answer due 9/7/2010, filed.(Matheny, Anthony) (Entered: 08/18/2010) 6 RETURN of Service of SUMMONS Executed as to Claudio Mueller served on 8/17/2010, answer due 9/7/2010, filed.(Matheny, Anthony) (Entered: 08/18/2010) 7 MOTION for Adam B. Landa to Appear Pro Hac Vice by Masterfile Corporation, filed. Motion Docket Date 9/8/2010. (Matheny, Anthony) (Entered: 08/18/2010) 8 ORDER granting 7 Motion to Appear Pro Hac Vice. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, ) (Entered: 08/20/2010) 9 NOTICE of Dismissal as to M & R USA, Inc., Claudio Mueller by Masterfile Corporation, filed. (Attachments: # 1 Proposed Order)(Matheny, Anthony) (Entered: 08/31/2010)

07/15/2010

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08/31/2010

10 Final DISMISSAL. Case terminated on 8/31/2010. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, ) (Entered: 08/31/2010)

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Case 4:10-cv-02503 Document 1

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

MASTERFILE CORPORATION Plaintiff, v. M & R USA, INC. and CLAUDIO MUELLER, Defendants.

Civil Action No. 4:10-cv-2503

JURY TRIAL DEMANDED

COMPLAINT Plaintiff, Masterfile Corporation (Masterfile), by its attorneys, for its complaint against Defendants, M & R USA, Inc. (M&R) and Claudio Mueller (Mueller, jointly Defendants), alleges as follows: JURISDICTION AND VENUE 1. This claim arises under the provisions of the Copyright Act of the United States,

as amended, 17 U.S.C. 1 et seq., and is for infringement of a copyright registered in the Copyright Office of the United States. 2. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331 and 1338(a). 3. Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and (c) in that the

Defendant M&R is a corporation subject to a personal jurisdiction in this district and all Defendants reside in the State of Texas.

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PARTIES 4. Masterfile is a well known stock photography agency residing at 3 Concorde Gate,

Fourth Floor, Toronto, Ontario, Canada M3C 3N7. 5. users for a fee. 6. Upon information and belief, Defendant M&R is engaged in the business of Masterfile is in the business of licensing reproduction rights in photographs to

international procurement. 7. Upon information and belief, Defendant M&R is a corporation operating,

conducting, engaging in, or carrying on a business or business venture in Texas. 8. Upon information and belief, Defendant M&R has an office located at 6420

Richmond Avenue, Ste. 530-7, Houston, Texas 77057. 9. Upon information and belief, Defendant M&R provides its services and

equipment to customers in Texas and solicits customers in Texas through the following website (the Website): www.mr-group.com. The Website is still operational today, and its contact page identifies Defendant M&R as the contact for USA and Canada, to wit:

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10.

Upon information and belief, Defendant Mueller is an individual residing at

12951 Briar Forest Drive, Houston, Texas 77077. 11. Upon information and belief, Defendant Mueller is the Managing Director of

Defendant M&R. 12. There is likely to be evidentiary support, after a reasonable opportunity for further

investigation or discovery, that Defendant Mueller holds a significant ownership in Defendant M&R. 13. There is likely to be evidentiary support, after a reasonable opportunity for further

investigation or discovery that Defendant Mueller is a dominant influence in the corporation and has the capacity to control the acts of the corporation.

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FACTS 14. On or about June 9, 2009, Masterfile discovered that Defendant M&R was using

ten (10) photographs (the Photographs) owned by Masterfile on the Website owned by Defendant M&R. Promptly after discovering the infringement, Masterfile sent notice of the infringement to Defendants. A true and correct copy of that notice is attached as Exhibit A. The notice included the screens captured directly from M&Rs website on or about June 11, 2009, and specifically identified each of Masterfiles copyrighted Photographs and the location(s) that each appeared on the website. 15. Masterfile complied in all respects with the Copyright Act of the United States

and secured the exclusive right and privilege in and to the copyright of the Photographs identified by Masterfile as: IMAGE CODE 700-00000479 700-00017302 700-00017680 700-00018130 700-00020432 700-00020927 700-00022259 700-00024553 700-00024889 700-00026381 DESCRIPTION Businessmen Outdoors Businesswoman Two Businessmen Blurred View of Man Business People Airplane & Buildings Business Handshake Business Collage Airplane Warehouse COPYRIGHT REGISTRATION VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 VA 1-023-866 EFFECTIVE DATE 17-Jul-00 17-Jul-00 17-Jul-00 17-Jul-00 17-Jul-00 17-Jul-00 17-Jul-00 17-Jul-00 17-Jul-00 17-Jul-00

Copies of the certificate of registration(s) for these Photographs, which were registered as individual images within a compilation, are attached as Exhibit B. 16. Defendant M&R infringed Masterfiles copyright in the Photographs by

displaying the Photographs on Defendants website without permission or authorization.

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17.

Defendant M&R is not, and has never been, licensed or otherwise authorized to

use the Photographs. 18. The Website is located on the World Wide Web and accessible throughout the

world, including in Texas, via the Internet. 19. Mueller. 20. Website. 21. Defendant Mueller had the ability to supervise and control content, including Defendant Mueller had the ability to supervise and control the development of the The Website was developed and implemented at the direction of Defendant

photographs, displayed on the Website. 22. Masterfile notified Defendants that Defendants unauthorized use of the

Photographs violates Masterfiles exclusive rights as copyright owner, and gave the Defendants an opportunity to enter into a retroactive licensing agreement or make payment for Defendants unauthorized use prior to instituting the present action. COUNT I CLAIM FOR COPYRIGHT INFRINGEMENT Under 17 U.S.C. 106 and 501 23. forth herein. 24. 25. Masterfile is owner of the copyright in and to the Photographs. Defendant M&R has made unauthorized copies of the Photographs and displayed Masterfile incorporates by this reference paragraphs 1-22 above as if fully set

the same on its Website, without the consent of Masterfile. 26. By making the unauthorized copies, and displaying the unauthorized copies, the

Defendant M&R infringes Masterfiles copyright in and to the Photographs.

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27. 28.

As a consequence of the foregoing infringement, Masterfile has suffered injury. As a further consequence of the foregoing infringement, Defendant M&R has

been unjustly enriched by using the Photographs without payment of the license fee therefore. 29. Defendant M&R has caused Masterfile to suffer injury and financial harm

including, the loss of its license fee, and infringement of Masterfiles proprietary interests. COUNT II CLAIM FOR COPYRIGHT INFRINGEMENT Under 17 U.S.C. 106 and 501 30. forth herein. 31. There is likely to be evidentiary support, after a reasonable opportunity for further Masterfile incorporates by this reference paragraphs 1-29 above as if fully set

investigation or discovery that Defendant Mueller is a dominant influence in the corporation. 32. There is likely to be evidentiary support, after a reasonable opportunity for further

investigation or discovery that Defendant Mueller has the capacity to control the acts of the corporation. 33. There is likely to be evidentiary support, after a reasonable opportunity for further

investigation or discovery that Defendant Mueller had the ability to supervise the infringing acts of Defendant M&R. 34. There is likely to be evidentiary support, after a reasonable opportunity for further

investigation or discovery that Defendant Mueller had a financial interest in the infringing acts of Defendant M&R. 35. There is likely to be evidentiary support, after a reasonable opportunity for further

investigation or discovery that Defendant Mueller directed the construction of the Website and/or personally participated in the infringing acts of Defendant M&R.

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36.

Defendant Mueller is therefore jointly and severally liable for the infringing acts

of Defendant M&R. COUNT III CLAIM FOR INTENTIONAL REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION UNDER 17 U.S.C. 1202(b) 37. forth herein. 38. Each of the Photographs contained embedded copyright management information Masterfile incorporates by this reference paragraphs 1-36 above as if fully set

protected under 17 U.S.C. 1202(b). 39. One or more of the Defendants either intentionally removed, or authorized,

instructed or otherwise directed a third party to remove, the copyright management information with the intent to induce, enable, facilitate, or conceal an infringement of Masterfiles rights under the Copyright Act. 40. 41. Such conduct as aforesaid is a violation of 17 U.S.C. 1202(b). By reason of said violation, Masterfile is entitled to recover statutory damages

under 17 U.S.C. 1203(c) in the amount of between $2,500.00 and $25,000 for each of the Photographs wherein the copyright management information was removed as aforesaid, for a total of not less than $25,000.00, nor more than $250,000.00, plus costs and attorneys fees. 42. DEMAND FOR JURY TRIAL Masterfile demands a trial by jury on all claims and issues.

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WHEREFORE, Masterfile prays that this Court: 1. Preliminarily and permanently enjoin Defendants, its officers, directors, principals,

agents, servants, employees, successors and assigns from: a. copying, or making any unauthorized use, including the making of derivatives, of the Photographs, in any form, including but not limited to print or electronic. b. manufacturing, producing, distributing, circulating, selling, offering for sale, advertising, promoting or displaying any promotional material bearing any simulation, reproduction, counterfeit, or copy of the Photographs. c. using any simulation, reproduction, counterfeit, or copy of the Photographs, in connection with the promotion, advertisement, display, sale, offering for sale, manufacture, production, circulation or distribution of any product or service of Defendants. 2. Direct Defendants to deliver for destruction all products, magazines, signs, prints,

packages, dies, wrappers, receptacles, digital files and advertisements in its possession or under its control, bearing the Photographs, or any simulation, reproduction, counterfeit, or copy, and all plates, molds, matrices and other means of making the same. 3. Direct Defendants to account for and relinquish to Masterfile all gains, profits,

and advantages derived by Defendants through Defendants infringement of Masterfiles copyright. 4. Award to Masterfile such damages, including actual or statutory damages, as

Masterfile is entitled to as a consequence of Defendants infringement of Masterfiles copyright. 5. Award to Masterfile such damages, including actual or statutory damages, as

Masterfile is entitled to as a consequence of Defendants removal of copyright management information.

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6. fees. 7. proper.

Award to Masterfile the costs of this action together with reasonable attorneys

Award to Masterfile such other and further relief as the Court may deem just and

Respectfully submitted, GREENBERG TRAURIG LLP By: /Anthony F. Matheny/ Anthony Matheny Attorney-In-Charge Texas State Bar No. 24002543 S.D. Tex. Bar No. 303157 1000 Louisiana, Suite 1700 Houston, Texas 77002 (713) 374-3583 (Telephone) (713) 754-7583 (Fax) Adam B. Landa, Esq. Florida Bar No. FL-0036016 Greenberg Traurig, PA 450 S. Orange Avenue, Suite 650 Orlando, Florida 32801-4923 Telephone: (917) 282-9823 ATTORNEYS FOR PLAINTIFF MASTERFILE CORPORATION