R. Bradley Maule vs. Seth Williams

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

R. Bradley Maule, indiv. and :
p/k/a PhillySkyline.Com, :
1617 John F. Kennedy Boulevard, :
Suite 1130 :
Philadelphia, PA 19103, :
: CIVIL ACTION
Plaintiff, : No.
v. :
:
R. Seth Williams :
District Attorney of Philadelphia :
Three South Penn Square : JURY TRIAL DEMANDED
Philadelphia, PA 19107-3499 :
:
:
Defendant. :
COMPLAINT
Jurisdiction and Venue
1. The jurisdiction of this court is based upon 28 U.S.C. 1400(a), in that Plaintiff is
an owner of a valid copyright which has been infringed upon by the unlawful acts of
Defendant herein, who regularly conducts business in the Eastern District of
Pennsylvania.
2. Jurisdiction over this cause of action is also proper before this Court pursuant to
28 U.S.C. 1331 as this copyright infringement civil action arises under the Constitution
and/or laws of the United States, and Title 17 of the United States Code in particular.
3. Venue is proper in this district pursuant to 28 U.S.C. 1400 and/or 28 U.S.C.
1391(b)(2) in that a substantial part of the events giving rise to Plaintiffs claim for
copyright infringement occurred in the Eastern District of Pennsylvania and in that
Defendant has been broadcasting, selling and distributing infringing advertisements,
and/or other media in the Philadelphia area, throughout the United States and abroad, as
well as on the Internet.
4. Venue is also proper in the Eastern District of Pennsylvania pursuant to 28 U.S.C.
1391(c) in that the Defendant has substantial business contacts with the Eastern District
of Pennsylvania as Defendant (or his agents) have been creating, broadcasting, selling
and distributing infringing advertisements, and/or other media in the Philadelphia area,
throughout the United States and abroad, as well as on the Internet.
Case 2:13-cv-04428-TJS Document 1 Filed 07/31/13 Page 1 of 35
2
Parties
5. Plaintiff R. Bradley Maule, individually and p/k/a PhillySkyline.Com, is a locally
based photographer, and is a citizen of the Commonwealth of Pennsylvania, who can be
served with process at the office of his undersigned counsel, located at 1617 John F.
Kennedy Boulevard, Suite 1130, Philadelphia, PA 19103.
6. Defendant R. Seth Williams is an adult individual with a principal place of
business located at the Office of the District Attorney of Philadelphia, Three South Penn
Square, Philadelphia, PA 19107-3499 (and is a Pennsylvania citizen), and at all times
relevant was and is the District Attorney of Philadelphia. Defendant Williams has
unlawfully infringed Plaintiffs copyright.
Facts
7. Plaintiff is a well-known and highly respected Philadelphia photographer, whose
work is regularly posted on his website, phillyskyline.com. Plaintiffs talents in
documenting his attention on Philadelphias neighborhoods, its people, culture,
architecture, and its urban development, are of such a caliber that he is perhaps the
premier photographer in Philadelphia today. His accomplishments are such that he is
regularly consulted by a variety of media concerning the aforementioned areas of interest,
and his website is beloved by countless fans throughout the Philadelphia region and
beyond.
8. In May 2005, Plaintiff took a unique photograph of the Philadelphia skyline, from
the 18
th
floor of Penn Tower, the hotel located high above Franklin Field and positioned
on the west side of the Schuylkill River.
9. The photograph itself was a wide, expansive shot of the Center City skyline in
particular, encompassing a panoramic view from the Commerce Square buildings located
at 2100 Market Street to the apartment buildings around Rittenhouse Square. A true and
correct copy of the photograph is attached hereto and incorporated herein as Exhibit A.
10. The Plaintiff then took his photograph, and altered it in the following fashion, to
wit:
a) the Plaintiff placed artistic conceptual renderings of the finished versions
of Comcast Center and Mandeville Place, and placed them in his
photograph, at their approximate locations, then under construction; and,
b) in addition, the Plaintiff altered a billboard that appeared above an
apartment building beside the Schuylkill river to read Visit Philly Skyline
Dot Com in order to serve as a watermark/signifier of his own creation.
3
A true and correct copy of the Plaintiffs enhanced photograph is attached hereto
and incorporated herein as Exhibit B (hereinafter the Projected Skyline Photograph.).
11. Immediately thereafter, on May 9, 2005, Plaintiff posted the Projected Skyline
Photograph on his website as a visual representation of what the Philadelphia skyline
would look like in 2008 A true and correct copy of the posting of the Projected Skyline
Photograph on Plaintiffs website is attached hereto and incorporated herein as Exhibit C.
12. Then, on or about April 1, 2013, the Plaintiff discovered that the Defendant had
been using Plaintiffs photograph as a background picture for the Defendants Twitter
webpage located at http://www.twitter.com/dasethwilliams (hereinafter the Twitter
webpage.). A true and correct copy of the Defendants Twitter webpage, on April 1,
2013, is attached hereto and incorporated herein as Exhibit D
13. On or about April 23, 2013, Plaintiff gave an interview to Philebrity.com, a local
news and gossip website, wherein Plaintiff identified (via a link in the article) that the
Defendant had been unlawfully using Plaintiffs photograph without Plaintiffs
permission. (Plaintiffs interview with Philebrity is attached hereto and incorporated
herein as Exhibit E).
14. Defendant nonetheless continued to unlawfully use Plaintiffs photograph on his
Twitter webpage.
15. Then, on this past Election Day (May 21, 2013) Plaintiff was having lunch with
his undersigned counsel at Famous 4
th
Street Deli, at 4
th
and Bainbridge Streets, in
Philadelphia, when the Defendant suddenly appeared beside Plaintiffs table.
16. Undersigned counsel introduced the Plaintiff to the Defendant, whereupon
undersigned counsel said to the Defendant, Seth, this is Brad Maule, whos a
photographer in town. Youve been using one of his photographs on your Twitter page,
and we dont know who to ask to prosecute you for the theft!
17. Plaintiff then explained to the Defendant, in an absolutely friendly and respectful
tone and manner, that the Defendant was using Plaintiffs aforementioned photograph as
a background picture on the Defendants Twitter page, without Plaintiffs permission.
18. Defendant immediately denied using Plaintiffs photograph on Defendants
Twitter webpage.
19. On July 26, 2013, undersigned counsel contacted the Defendant at his office and
informed the Defendant of the continued, unauthorized use of Plaintiffs photograph on
the Defendants Twitter webpage. Defendant then contacted undersigned counsel, and
informed him that he took the photograph down from Defendants Twitter webpage. (A
true and correct screengrab of Defendants Twitter webpage on July 26, 2013 is attached
hereto and incorporated herein as Exhibit F).
4
20. On July 29, 2013, however, it was apparent that despite his aforementioned
representation to the contrary, the Defendant did not remove Plaintiffs photograph from
the Defendants Twitter webpage, and undersigned counsel for the Plaintiff left a
message at the Defendants office regarding the same. (A true and correct screengrab of
Defendants Twitter webpage on July 29, 2013 is attached hereto and incorporated herein
as Exhibit G).
21. On the afternoon of July 30, 2013, the Defendants secretary, Regina Purtell,
called undersigned counsel for the Plaintiff, and asked for proof that the Plaintiffs
picture was on the Defendants Twitter webpage. Undersigned counsel suggested to the
secretary that she look at http://www.twitter.com/dasethwilliams on her computer, but the
secretary said she was unable to look at websites from her office computer, and requested
that undersigned counsel forward a screengrab to her via email. (A true and correct
screengrab of Defendants Twitter webpage on July 30, 2013 is attached hereto and
incorporated herein as Exhibit H, and a true and correct copy of the email forwarding said
screengrab is attached hereto and incorporated herein as Exhibit I).
22. Within an hour of sending Exhibits H and I to Regina Purtell, the Defendant
himself then called undersigned counsel and again claimed that there was no such
photograph on the Defendants Twitter webpage, because the Defendant was looking at
his Twitter account on his smartphone and there was no skyline on his smartphone
rendition of his Twitter account.
23. Undersigned counsel for the Plaintiff then asked Defendant to look at his Twitter
webpage on his computer at work, and Defendant said that he could not look at it on his
office computer.
24. Undersigned counsel for the Plaintiff then asked Defendant to look at his Twitter
webpage on a regular persons computer, to which Defendant replied that he didnt
have access to a regular persons computer and that any claim of copyright
infringement in this regard was silly bullshit. Defendant then suggested that
undersigned counsel might as well go ahead and file this lawsuit for copyright
infringement.
25. The infringing Twitter webpage is clearly a theft and carbon copy of Plaintiffs
Projected Skyline Photo, as many of the attributes of the Plaintiffs photo (in particular,
his artistic conceptions and placement of Comcast Center and Mandeville Place ) are
evident therein. Compare Exhibits B and C with Exhibits D, F, G and H.
26. Indeed, as further evidence of stealing the Projected Skyline Photo, the
Defendants Twitter webpage clearly demonstrates the watermark/billboard from
Plaintiffs photograph, which is conspicuously centered on the right hand side of the
photograph in Exhibits D, F, G & H reading Visit Philly Skyline Dot Com.
27. The Defendant intentionally stole the Plaintiffs photo and/or intentionally
maintained it on his Twitter webpage, as Defendant was notified of the theft on at least
5
one occasion by the Plaintiff himself at Famous 4
th
Street, as aforementioned, and the
Defendant nonetheless continued to use Plaintiffs photograph without permission.
28. At best, the District Attorney of Philadelphia has no idea how to use a computer, a
smartphone, a Twitter account and/or a Twitter webpage.
29. At worst, the Defendant lied and/or misrepresented to the Plaintiff, on no less than
threeseparate occasions (May 21, 2013, July 26, 2013 and July 30, 2013) that he either
did not have Plaintiffs picture on Defendants Twitter webpage, or that he removed the
Plaintiffs photograph from his Twitter webpage.
30. Plaintiffs Projected Skyline Photograph was registered with the Copyright
Office, with an effective copyright registration date of May 13, 2008 at registration
number VA 1-632-353. See Copyright Registration, a true and correct copy of which is
attached hereto and incorporated herein as Exhibit J.
31. The Defendant has intentionally and unlawfully stolen and reproduced the
Plaintiffs photograph, infringing upon his copyright therein and inuring considerable
profits and/or publicity from the same.
32. In so doing, the Defendant has been producing the infringing Twitter webpage
through his own websites and/or other media, adding to the considerable public
popularity of his own political career and/or services, and thereby infringing upon
Plaintiffs copyright therein and inuring considerable profits and/or publicity from the
same.
33. Upon information and belief, the Defendant owns a copyright (via registration
with the Copyright Office or automatically by statute) to his own infringing Twitter
webpage.
34. Upon information and belief, no copyright registration submitted by the
Defendant to the Registrar of Copyrights mentions any derivation in Plaintiffs original
photography, as aforementioned.
35. By contrast, Plaintiff properly registered his copyright interest in the
aforementioned photograph, by delivering his application, deposit material (consisting of
two CD copies of the work), along with the required payment, to the Copyright Registrar.
Plaintiff has an official copyright for the aforementioned works from the Library of
Congress with an effective registration date of May 13, 2008. See Exhibit J.
36. The Defendant never contacted the Plaintiff at any time prior to, during, or after
the infringing Twitter webpage was published, concerning the use of his aforementioned
photograph.
37. Plaintiff did not give his consent, permission or license, in any way, to the
Defendant to reproduce his copyrighted photograph, in any fashion, for any use in the
6
infringing Twitter webpage. The Defendant reproduced Plaintiffs copyrighted
photograph anyway, in violation of 17 U.S.C. 106(1).
38. The Plaintiff did not give his consent, permission or license, in any way, to the
Defendant to specifically include Plaintiffs copyrighted photograph as a derivative work
contained in the infringing Twitter webpage. The Defendant prepared the derivative
work namely, the infringing Twitter webpage based upon Plaintiffs copyrighted
photograph anyway, in violation of 17 U.S.C. 106(2).
39. The Plaintiff did not give his consent, permission or license, in any way, to the
Defendant to specifically engage in the public distribution of Plaintiffs copyrighted
photographs contained in the infringing Twitter webpage. Through the creation,
publication, distribution, unlawful registration of copyright and/or sale of the infringing
Twitter webpage, the Defendant publicly distributed Plaintiffs copyrighted photograph
anyway, in violation of 17 U.S.C. 106(3).
40. The Plaintiff did not give his consent, permission or license in any way to the
Defendant to specifically include Plaintiffs copyrighted photograph in any public display
(such as the infringing Twitter webpage). The Defendant performed and/or displayed
Plaintiffs copyrighted photograph anyway, in violation of 17 U.S.C. 106(4) and/or
106(5).
41. The Defendant has not compensated the Plaintiff in any fashion whatsoever for
the use of his copyrighted photograph in the creation, publication, distribution, unlawful
registration of copyright and/or sale of the infringing Twitter webpage and/or use of the
Plaintiffs photo therein.
42. Upon information and belief, the Defendants infringing behavior, as
aforementioned, has generated great utility for the Defendant and assisted him in his
political and governmental career without the Plaintiffs permission, and without any
remuneration to the Plaintiff.
43. The Defendant knowingly and willfully, directly and/or derivatively, copied
without independent creation, Plaintiffs copyrighted photograph for the specific purpose
of infringing upon Plaintiffs copyright and to unlawfully enrich the Defendant at
Plaintiffs expense, as the Defendant never obtained a license from the Plaintiff, let alone
his consent or permission, for the specific use of his copyrighted photograph in the
infringing Twitter webpage.
PLAINTIFF v. DEFENDANT
COUNT I
COPYRIGHT INFRINGEMENT 17 U.S.C. 501 et. seq.
Request for Damages pursuant to
17 U.S.C. 503 through 505
7
44. Averments 1 through 43 are incorporated as though fully set forth herein at
length.
45. The infringing Twitter webpage flagrantly infringes upon the Plaintiffs
copyrighted photo, as aforementioned. Compare Exhibits B and C with Exhibits D, F, G
and H.
46. Upon information and belief, the Defendant falsely copyrighted (and/or
automatically enjoys a copyright in) the infringing Twitter webpage as an original work,
with no credit given for the derivative photograph of the Plaintiff which is included
therein.
47. As set forth more comprehensively above, the Defendant has willfully and
deliberately infringed upon Plaintiffs copyrighted photograph, and continues to do so on
on his Twitter website and on the Internet, despite being advised of the theft on numerous
occasions.
48. At no time did the Defendant have a license or authority of any kind to
specifically use Plaintiffs copyrighted photograph in the infringing Twitter webpage.
49. The express use and inclusion of Plaintiffs copyrighted photograph in the
infringing Twitter webpage, as aforementioned, is evidence of the Defendants direct
access to the same; furthermore, the literal reproduction of the Plaintiffs photograph (and
the clear appearance of the Plaintiffs watermark/billboard in Exhibits D, F, G and H)
raises a clear inference of such access.
50. The Defendant has willfully infringed on the copyright owned by Plaintiff, which
was properly registered with the Copyright Office. See Exhibit J.
51. Based on the foregoing, and pursuant to 17 U.S.C. 504, Plaintiff is entitled to
have the Defendant disgorge all profits earned (directly or indirectly) as a result of
Defendants copyright infringement.
52. In the alternative to payment of Defendants profits, pursuant to 17 U.S.C. 504,
Plaintiff is entitled to One Hundred Fifty Thousand ($150,000) Dollars per willful
infringement after the date of registration of the official copyright.
53. In addition, pursuant to 17 U.S.C. 503, Plaintiff respectfully requests this
Honorable Court to order the impounding of the infringing Twitter webpage, and to order
the Defendant to cease and desist from further broadcasting the infringing Twitter
webpage in any fashion, including on the internet, as the same is in violation of Plaintiffs
copyright.
54. In addition, pursuant to 17 U.S.C. 505, Plaintiff respectfully requests this
Honorable Court to order the Defendant to pay all costs incurred by the Plaintiff in the
prosecution of this civil action, including, but not limited to, attorneys fees.
8
WHEREFORE, Plaintiff requests judgment against the Defendant for an
accounting of all profits derived from use of the Plaintiffs copyrighted photograph, plus
compensatory, punitive, and/or statutory damages, in excess of $150,000 (ONE
HUNDRED FIFTY THOUSAND DOLLARS) representing said damages, Defendants
profits, interest, costs, attorneys fees, and such other relief as the Court deems
appropriate.
COUNT II
COPYRIGHT INFRINGEMENT 17 U.S.C. 501 et. seq.
Request for Injunctive Relief pursuant to
17 U.S.C. 502
55. Averments 1 through 54 are incorporated as though fully set forth herein at
length.
56. The Defendant has willfully infringed on the copyright owned by Plaintiff, which
was properly registered with the Copyright Office. See Exhibit J.
57. Defendants infringement, use, sale and/or pirating of Plaintiffs copyrighted
photograph has caused permanent and irreparable harm to Plaintiff.
58. Unless an injunction is granted barring Defendant from further distributing,
marketing, selling, publishing, or otherwise promoting his infringing Twitter webpage,
Plaintiff will continue to suffer ongoing irreparable harm.
59. Plaintiff does not have an adequate remedy at law.
60. Based upon the clear and willful violations in this case, and the unlawful inclusion
of Plaintiffs photograph in the infringing Twitter webpage, Plaintiff has a substantial
likelihood of success on the merits.
61. Greater harm will befall the Plaintiff than the Defendant if the injunctive relief
herein is not granted.
62. Pursuant to 17 U.S.C. 502, Plaintiff respectfully requests this Honorable Court
to grant a temporary and/or final injunction on such terms as this Court deems reasonable
to prevent and restrain the infringement of Plaintiffs copyright.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an
Order:
9
(a) restraining the Defendant and his agents, domestically and abroad, from
promoting, selling, marketing, advertising, shipping, transporting (directly
or indirectly) or otherwise moving in domestic or foreign commerce, any
and all products which infringe upon Plaintiffs copyrighted work; and/or,
(b) ordering Defendant to forfeit (and/or recall) the infringing Twitter
webpage; and/or,
(c) ordering Defendant to recall or remove any and all of his catalogs,
websites, books, posters or brochures or other material which contain an
infringement of Plaintiffs work; and/or,
(d) ordering all of Defendants agents to refrain from selling or marketing the
infringing Twitter webpage in question; and/or,
(e) ordering that Plaintiff be remunerated for his work in any future versions
sold; and/or,
(f) providing such other relief as the Court deems just, including costs and
attorneys fees.
COUNT III
Request for Declaratory Relief pursuant to
28 U.S.C. 2201
63. Averments 1 through 62 are hereby incorporated as though fully set forth herein
at length.
64. Upon information and belief, Defendant falsely filed for copyright protection
(and/or enjoys copyright protection automatically) on the infringing Twitter webpage, as
Defendant did not identify the infringing advertisement as being derivative of Plaintiffs
copyrighted photograph.
65. Defendant falsely filed for copyright protection (and/or enjoys copyright
protection automatically) on the infringing Twitter webpage, knowing that Plaintiffs
photograph enjoys copyright protection. This raises a legal dispute that can properly be
decided by a request for a declaratory judgment that Defendants copyright in the
infringing Twitter webpage is invalid.
66. Defendants copyright in the infringing Twitter webpage should be invalidated
based upon Defendants use of Plaintiffs original photograph for unlawful inclusion
therein.
WHEREFORE, Plaintiff respectfully requests for judgment declaring Defendants
copyright as it applies to the infringing Twitter webpage to be invalid as said copyright is
10
a derivative of Plaintiffs copyrighted photograph, and Plaintiff is entitled to protection of
the copyright. Plaintiffs also seek all attorneys fees and costs incurred in seeking this
declaratory action.
COUNT IV
SUPPLEMENTAL STATE LAW CLAIM
RESTATEMENT (SECOND) TORTS, 652(c)
at length.
68. The Defendant appropriated the name and/or likeness and/or identity of Plaintiff
(p/k/a PhillySkyline.Com) by including his photograph and/or his watermark in the
infringing Twitter webpage.
69. The Defendant thereby appropriated the name and/or likeness and/or identity of
Plaintiff, as well as his photograph, for a commercial purpose namely, the Defendants
own political advertising.
70. Plaintiff never consented to the appropriation of his name and/or likeness and/or
identity for the Defendants use thereof in the infringing Twitter webpage.
71. The Defendant neither consulted with, nor obtained a license or permission from,
the Plaintiff to appropriate Plaintiffs name and/or likeness in the infringing
advertisement.
72. Plaintiff is offended and aggrieved that his name and/or likeness and/or identity,
not to mention the brazen use of his copyrighted photograph, was manipulated for the
commercial and/or political aspirations of the Defendant in the infringing Twitter
webpage, without any remuneration to Plaintiff whatsoever.
WHEREFORE, Plaintiff requests judgment against the Defendant for an
accounting of all profits derived from use of the Plaintiffs copyrighted photograph, plus
compensatory, punitive, and/or statutory damages, in excess of $150,000 (ONE
HUNDRED FIFTY THOUSAND DOLLARS) representing said damages, Defendants
profits, interest, costs, attorneys fees, and such other relief as the Court deems
appropriate.
PLAINTIFF v. DEFENDANTS
COUNT V
SUPPLEMENTAL STATE LAW CLAIM
54 Pa.C.S.A. 1124 and 1125
11
at length.
74. Plaintiff is the owner of a mark (Phillyskyline.com) which is famous in this
Commonwealth, and which appears on every web page on his site (at the very least,
within the address bar of his webpage).
75. The Defendants knowingly, willfully, outrageously, intentionally, wantonly,
recklessly and/or maliciously used and/or abused Plaintiffs mark by including the
aforementioned photograph with Plaintiffs watermark, as aforementioned, for
publication on the infringing Twitter webpage, and did so after Plaintiffs mark had
become famous.
76. The Defendants actions and/or inactions in this regard have caused the dilution of
the distinctive quality of Plaintiffs mark.
77. The Defendant knowingly, willfully, outrageously, intentionally, wantonly,
recklessly and/or maliciously intended to trade on the Plaintiffs reputation or to cause
dilution of Plaintiffs mark.
78. The Defendant knowingly, willfully, outrageously, intentionally, wantonly,
recklessly and/or maliciously and/or in bad faith used Plaintiffs photograph for inclusion
in the infringing Twitter webpage, as aforementioned.
WHEREFORE, pursuant to 54 Pa.C.S.A. 1125, Plaintiff respectfully requests
judgment against the Defendant, and an Order requiring the Defendant to pay to Plaintiff
all profits derived from and all damages suffered by reason of his wrongful use, display
or sale of Plaintiffs photograph, plus punitive and/or treble damages and reasonable
attorney fees, in excess of $150,000 (ONE HUNDRED FIFTY THOUSAND
DOLLARS).
DEMAND FOR JURY TRIAL
Trial by a jury of twelve (12) persons is demanded as to all issues.
Respectfully Submitted,
Date: July 31, 2013 _____________________________
J. Conor Corcoran, Esquire
1617 John F. Kennedy Boulevard
Suite 1130
Philadelphia, PA 19103
Phone: (215) 977-9300
Fax: (215) 864-0188
12
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
R. Bradley Maule, indiv. and :
p/k/a PhillySkyline.Com, :
1617 John F. Kennedy Boulevard, :
Suite 1130 :
Philadelphia, PA 19103, :
: CIVIL ACTION
Plaintiff, : No.
v. :
:
R. Seth Williams :
District Attorney of Philadelphia :
Three South Penn Square : JURY TRIAL DEMANDED
Philadelphia, PA 19107-3499 :
:
:
Defendant. :
CERTIFICATE OF SERVICE
I, J. Conor Corcoran, Esquire, hereby certify that a true and correct copy of the
Complaint in the above captioned matter has been sent to the following by first class,
United States, certified mail:
R. Seth Williams
District Attorney of Philadelphia
Three South Penn Square
Philadelphia, PA 191073499
Date: July 31, 2013 _______________________
J. Conor Corcoran, Esquire

R. Bradley Maule vs. Seth Williams

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

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