CM/ECF-GA Northern District Court

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4months, CLOSED

U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:10-cv-01473-WSD

Masterfile Corporation v. Barth Assigned to: Judge William S. Duffey, Jr Cause: 28:1338 Copyright Infringement

Date Filed: 05/14/2010 Date Terminated: 12/01/2010 Jury Demand: None Nature of Suit: 820 Copyright Jurisdiction: Federal Question

Date Filed 05/14/2010

Docket Text

1 COMPLAINT, filed by Masterfile Corporation; and Summon(s) issued. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. ( Filing fee $ 350.00 receipt number 113E0000000002712159.) (Attachments: # 1 Exhibit A, # 2 Summons, # 3 Civil Cover Sheet)(eop) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 05/14/2010) 2 Certificate of Interested Persons by Masterfile Corporation. (eop) (Entered: 05/14/2010) 3 Summons Issued as to Shane Barth. (Attachments: # 1 Shane Barth at addl address)(kt) (Entered: 06/03/2010) 4 Summons Issued as to Shane Barth. (kt) (Entered: 07/09/2010) 5 Return of Service Executed by Masterfile Corporation. Shane Barth served on 7/15/2010, answer due 8/5/2010. (Fonoroff, Alex) (Entered: 07/22/2010) 6 NOTICE by Shane Barth Application for Admission Pro Hac Vice (Attachments: # 1 Text of Proposed Order)(McKenney, William) (Entered: 08/13/2010) 7 ANSWER to 1 COMPLAINT by Shane Barth. Discovery ends on 1/10/2011. (McKenney, William) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/13/2010) NOTICE FROM THE COURT (by docket entry only): Parties are advised to go to the district courts website at www.gand.uscourts.gov. On the home page, locate the Attorney Information link which will direct you to Preparation for a Civil and/or Criminal Trial Before Judge Duffey. Here, the Court has provided its Standing Order Regarding Civil Litigants. The Parties shall abide by this Standing Order throughout the processing of this case. (jdb) (Entered: 08/16/2010) 8 APPLICATION for Admission of Oscar Michelen Pro Hac Vice (Application fee $ 150, receipt number 113E-2872737)by Shane Barth. (Attachments: # 1 Text of Proposed Order)(McKenney, William) (Entered: 08/30/2010)

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CM/ECF-GA Northern District Court

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APPROVAL by Clerks Office re: 8 APPLICATION for Admission of Oscar Michelen Pro Hac Vice (Application fee $ 150, receipt number 113E-2872737). Attorney Oscar Michelen added appearing on behalf of Shane Barth (cdg) (Entered: 09/09/2010) ORDER (by docket entry only) granting 8 Application for Admission Pro Hac Vice of Oscar Michelen. Ordered by Judge William S. Duffey, Jr. on 9/9/10. (jdb) (Entered: 09/09/2010) 9 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by Masterfile Corporation. (Vayner, Sabina) (Entered: 09/13/2010) 10 Initial Disclosures by Masterfile Corporation.(Vayner, Sabina) (Entered: 09/13/2010) 11 Minute Entry for Status Conference held on 9/20/2010 before Judge William S. Duffey, Jr: Counsel shall report back to the Court on September 29. (Court Reporter Nick Marrone)(kt) (Entered: 09/20/2010) 12 STIPULATION of Dismissal of Action Without Prejudice by Masterfile Corporation. (Vayner, Sabina) (Entered: 12/01/2010) 13 Clerk's Entry of Dismissal APPROVING 12 Stipulation of Dismissal pursuant to Fed.R.Civ.P.41(a)(1)(ii) (NO DOCUMENT ATTACHED) (mdy) Modified on 12/1/2010 to edit docket text (mdy). (Entered: 12/01/2010) Civil Case Terminated. (mdy) (Entered: 12/01/2010)

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Case 1:10-cv-01473-WSD Document 1

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MASTERFILE CORPORATION, Plaintiff, v. SHANE BARTH d/b/a BARTH INTERNATIONAL and d/b/a REDESIGN BUSINESS CONCEPTS, Defendant. ) ) ) ) ) ) ) ) ) ) )

Civil Action No.:

COMPLAINT Plaintiff Masterfile Corporation (Masterfile) states the following for its Complaint against Defendant Shane Barth d/b/a Barth International and d/b/a ReDesign Business Concepts (Defendant). SUBSTANCE OF THE ACTION 1. This is an action at law and in equity for copyright infringement

arising under the Copyright Act of 1976, 17 U.S.C. 101 et seq. 2. This case arises out of Defendants unauthorized reproduction, public

display, and unauthorized creation of derivative works of six (6) images, the copyrights in which were all owned by Masterfile at the time of the infringement. Masterfile seeks injunctive relief, an accounting of Defendants profits,

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Masterfiles actual damages (or if it so elects, statutory damages), and Masterfiles reasonable costs and attorneys fees. The Parties 3. Masterfile is a Canadian corporation with its principal place of

business located at 3 Concorde Gate, Fourth Floor, Toronto, Ontario, Canada M3C 3N7. Masterfile is a stock photography agency in the business of licensing

reproduction and display rights in photographs and other images to users for a fee. 4. Upon information and belief, Defendant Shane Barth is an individual

residing in the State of Georgia, with known addresses at 951 Crane Road NE, Atlanta, Georgia 30324, and 4248 Briarcliff Road NE, Atlanta, GA 30345. 5. Upon information and belief, Defendant is doing business in this Upon

District as Barth International and as ReDesign Business Concepts.

information and belief, Defendant holds a significant ownership interest in Barth International and ReDesign Business Concepts, is the principal of Barth International and ReDesign Business Concepts, and is a dominant influence in, and personally and intentionally directs and controls the activities of, Barth International and ReDesign Business Concepts. 6. Defendant, doing business as Barth International, is engaged in the

business of providing virtual executive and technical recruiting services, and

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operates a website at www.barthinternational.com (the Barth Website) through which he advertises and solicits customers. 7. Defendant, doing business as ReDesign Business Concepts, is

engaged in the business of providing information technology, staff augmentation, and recruiting services, and operates a website at www.rdbconcepts.com (the ReDesign Website) through which he advertises and solicits customers. Jurisdiction and Venue 8. This Court has subject matter jurisdiction over this dispute under 28

U.S.C. 1331 and 1338 because this suit arises under the federal Copyright Act. 9. This Court has personal jurisdiction over Defendant because

Defendant is a citizen of this State, transacts business within this State, and/or a substantial part of the events giving rise to the claims occurred in this State. 10. Venue is proper in this district under 28 U.S.C. 1391(b) and

1400(a) because Defendant does business in this District, a substantial part of the events giving rise to the claims occurred in this District, and Defendant or his agents may be found in this District. Facts 11. Masterfile obtained assignments of the copyrights in six (6) images,

identified by Masterfile as 700-00014235, 700-00024425, 700-00018315, 700-

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00020789, 700-00024553, and 700-00043016 (the Images) and obtained the following certificates of copyright registration from the United States Copyright Office covering each of the Images, with the effective date indicated: VA 1-023870 (July 17, 2000) and VA 1-023-866 (July 17, 2000). registration certificates are attached as Exhibit A. 12. In March 2009, Masterfile became aware that the images identified as Copies of these

700-00014235 and 700-00024425, or derivative works based on these images, were included on the Barth Website. 13. In August 2009, Masterfile became aware that the images identified as

700-00018315, 700-00020789, 700-00024553, and 700-00043016, or derivative works based on these images, were included on the ReDesign Website. 14. Defendant has not, and has never been, licensed or authorized to

reproduce or display the Images on either the Barth Website or the ReDesign Website or to create derivative works based on the Images. 15. Each of the Images is an original work of authorship fixed in a

tangible medium of expression from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, and as such is protected by copyright.

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16.

At all times relevant to this action, Masterfile was the sole and

exclusive owner of all right, title, and interest in and to the copyright in each of the Images. 17. 18. Defendant had access to the Images. The Barth Website included images identical to or substantially

similar to the images identified as 700-00014235 and 700-00024425. 19. The ReDesign Website included images identical to or substantially

similar to the images identified as 700-00018315, 700-00020789, 700-00024553, and 700-00043016. 20. Upon information and belief, without Masterfiles authorization,

Defendant and/or his agents, reproduced and publicly displayed Masterfiles copyrightable works and/or created and publicly displayed derivative works based on Masterfiles copyrightable works in violation of the Copyright Act, 17 U.S.C. 501. 21. The infringement of Masterfiles copyrights has caused irreparable

injury to Masterfile, and unless enjoined by this Court, such infringement could resume and cause further irreparable injury to Masterfile. 22. Upon information and belief, the acts of infringement alleged herein

were committed willfully and in knowing disregard of Masterfiles rights.

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Masterfile sent Defendant several communications regarding Masterfiles rights in the Images and Defendants violation of those rights, but Defendant continued his infringement of the images identified as 700-00014235 and 700-00024425 for approximately a month in knowing disregard of Masterfiles rights, and continued his infringement of the images identified as 700-00018315, 700-00020789, 70000024553, and 700-00043016 for approximately six months in knowing disregard of Masterfiles rights, until these images were removed by the Internet Service Provider hosting the ReDesign Website. 23. As a result of Defendants acts of infringement alleged herein and in

accordance with Section 504(b) of the Copyright Act, 17 U.S.C. 504(b), Masterfile is entitled to recover from Defendant the damages it has sustained and will sustain, and any profits obtained by Defendant as a result of or attributable to the infringement. At present, the amount of such damages and profits cannot be fully ascertained by Masterfile. 24. Because Masterfile timely registered the copyrights in the Images

with the United States Copyright Office in accordance with Section 412 of the Copyright Act, 17 U.S.C. 412, Masterfile is entitled to recover statutory damages for each such work, if it so elects, in accordance with Section 504(c) of the Copyright Act, 17 U.S.C. 504(c), and Masterfile is also entitled to recover its

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attorneys fees and costs, in accordance with Section 505 of the Copyright Act, 17 U.S.C. 505. 25. Further, in accordance with Section 502 of the Copyright Act, 17

U.S.C. 502, Masterfile is entitled to injunctive relief to prevent Defendant from further copyright infringements of the Images. WHEREFORE, Masterfile prays for judgment as follows: 1. Permanently enjoining Defendant, his employees, agents, officers,

directors, attorneys, affiliates, and assigns, and all those in active concert and participation with Defendant from: (a) reproducing, displaying, distributing, creating derivative works

of, or authorizing any third party to reproduce, display, distribute, or create derivative works of the Images, or any image substantially similar thereto, or otherwise infringing Masterfiles copyrights in any manner, medium, or form; and (b) assisting, aiding, or abetting any other person or business entity

in engaging or performing any of the activities referred to in subparagraph (a). 2. In accordance with Section 504(b) of the Copyright Act, 17 U.S.C.

504(b), Masterfile be awarded such damages as it has sustained and will sustain as a result of or attributable to Defendants copyright infringement, together with

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any profits obtained by Defendant as a result of or attributable to Defendants copyright infringement. 3. Masterfile, if it so elects, be awarded statutory damages for each work

infringed and that such award be increased based on Defendants willful infringement, in accordance with Section 504(c) of the Copyright Act, 17 U.S.C. 504(c). 4. In accordance with Section 505 of the Copyright Act, 17 U.S.C.

505, Masterfile be awarded its expenses of litigation incurred in connection with this action, including its costs and attorneys fees. 5. Masterfile be awarded interest, including prejudgment interest, on the

foregoing sums. 6. Masterfile be awarded such other and further relief as the Court may

deem just and proper. This 14th day of May, 2010. Respectfully submitted, s/ Alex S. Fonoroff Alex S. Fonoroff (GA Bar No. 267457) Sabina A. Vayner (GA Bar No. 565211) afonoroff@kilpatrickstockton.com svayner@kilpatrickstockton.com Attorneys for Plaintiff

KILPATRICK STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309-4530 (404) 815-6500 (telephone) (404) 815-6555 (facsimile)