Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 1 of 9 Page ID #:1

1 Michael N. Zachary (SBN 112479)

2 mzachary@bdiplaw.com
Nicholas S. Mancuso (SBN 271668)
3 nmancuso@bdiplaw.com
4 Hillary N. Bunsow (SBN 278719)
hillarybunsow@bdiplaw.com
5 BUNSOW DE MORY LLP
6 701 El Camino Real
Redwood City, CA 94063
7 Telephone: (650) 351-7248
8 Facsimile: (650) 351-7253
9 Attorneys for Plaintiff
10 Larry G. Philpot
11
12
UNITED STATES DISTRICT COURT
13
14 CENTRAL DISTRICT OF CALIFORNIA

15
16 LARRY G. PHILPOT, CASE NO. 2:18-cv-7330

17 Plaintiff, COMPLAINT FOR

18 COPYRIGHT
v. INFRINGEMENT,
19 VIOLATIONS OF THE
20 DIGITAL MILLENIUM
LYNYRD SKYNYRD PRODUCTIONS, COPYRIGHT ACT
21 INC.,
22
Defendant.
23 JURY TRIAL DEMANDED
24
25
26
27
28

COMPLAINT CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 2 of 9 Page ID #:2

1 COMPLAINT
2 Larry G. Philpot (“Mr. Philpot” or “Plaintiff”) complains against defendant
3 Lynyrd Skynyrd Productions, Inc. (“Lynyrd Skynyrd” or “Defendant”) as follows:
4 1. Mr. Philpot is a professional photographer who has taken many well-known
5 and sought after photographs of musicians live in concert. Defendant Lynyrd
6 Skynyrd has used Mr. Philpot’s photograph of musician Jerry Lee Lewis for its
7 own commercial gain, without Mr. Philpot’s permission and with the photograph’s
8 copyright management information stripped. As such, Lynyrd Skynyrd is liable to
9 Mr. Philpot for damages for copyright infringement and violations of the Digital
10 Millennium Copyright Act.
11 JURISDICTION AND VENUE
12 2. This civil action arises under the United States Copyright Act, 17 U.S.C. §
13 101 et seq, and under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C.
14 § 1202 et seq. This Court has jurisdiction over this action under 28 U.S.C. § 1331,
15 17 U.S.C. § 501(a), 17 U.S.C. § 1202, and 28 U.S.C. § 1338.
16 3. This Court has personal jurisdiction over Lynyrd Skynyrd by virtue of the
17 fact that it transacts and does business in California. Upon information and belief,
18 Lynyrd Skynyrd maintains a business and mailing address in, and has officers
19 located in, Encino, California. Lynyrd Skynyrd performs concerts in cities across
20 California and its management company and booking agent maintain offices in
21 California. A substantial part of the relevant events alleged in this Complaint
22 occurred in California.
23 4. Venue is also proper in this District pursuant to 28 U.S.C. §§ 1391(b) and
24 1400(a) because Lynyrd Skynyrd transacts, does business, and performs concerts
25 in this District; maintains a business address, mailing address, and officers in this
26 District; utilizes a management company and booking agent with offices in this
27 District; and because a substantial part of the events or omissions giving rise to the
28 claims occurred in this District.

COMPLAINT -1- CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 3 of 9 Page ID #:3

1 PARTIES
2 5. Mr. Philpot is a professional photographer whose work focuses exclusively
3 on concert events across the United States. Mr. Philpot resides in Indianapolis,
4 Indiana. Mr. Philpot’s photographs of leading concert performers are known for
5 their high quality and acuity.
6 6. On information and belief, Defendant Lynyrd Skynyrd is a Florida
7 corporation with a business address, mailing address, and officers located at 15821
8 Ventura Blvd., #270, Encino, California 91436. Defendant utilizes Vector
9 Management as its management company, which has an office in Los Angeles,
10 California, and William Morris Endeavor as its booking agent, which has an office
11 in Beverly Hills, California.
12 7. Lynyrd Skynyrd is a popular Southern rock band that has been touring and
13 making music for decades. As of the date of this Complaint, the band is currently
14 in the middle of its final tour, the Last of the Street Survivors Farewell Tour (the
15 “Farewell Tour”). The Farewell Tour consists of fifty-three (53) performances in
16 cities across the United States and in Mexico, including stops in Chula Vista,
17 Mountain View, and San Bernardino, California.
18 FACTS COMMON TO ALL COUNTS
19 8. On April 30, 2011, Mr. Philpot took a photograph of entertainer Jerry Lee
20 Lewis in performance in Memphis, Tennessee (the “Lewis Photograph”). The
21 photograph is an original work that is copyrighted under United States law and was
22 registered with the United States Copyright Office on May 17, 2013 with the
23 Certificate Number VAu 1-164-648. Plaintiff’s registration is attached hereto as
24 Exhibit A.
25 9. Mr. Philpot has been and is the sole owner of the copyright in the Lewis
26 Photograph. Mr. Philpot uploaded the Lewis Photograph on October 4, 2013 to the
27 Wikimedia website at the following URL:
28

COMPLAINT -2- CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 4 of 9 Page ID #:4

1 https://commons.wikimedia.org/wiki/File:Jerry_Lee.jpg. The Lewis Photograph

2 from Wikimedia is attached as Exhibit B.
3 10. Mr. Philpot agreed to make the Lewis Photograph available through the
4 website Wikimedia for reproduction, distribution, and public performance of the
5 photograph and adaptations, solely under and pursuant to the terms of the Creative
6 Commons Attribution-ShareAlike 3.0 Unported license (the “CC 3.0 License”).
7 The terms of the CC 3.0 License require the licensee to keep intact all copyright
8 notices for the work and to provide attribution to the author if the work, or an
9 adaptation, is distributed or publicly performed. Mr. Philpot requires that the
10 photograph be attributed to him as part of the license. Screenshots of the license
11 and attribution requirements, taken on August 16, 2018, are attached as Exhibit C.
12 The requirements have been in effect since Mr. Philpot first uploaded the
13 photograph to Wikimedia.
14 11. On the Wikimedia website the Lewis Photograph contains copyright
15 management information (CMI), including metadata, which indicates that Mr.
16 Philpot is the author of the photograph, that the photograph must be attributed to
17 Mr. Philpot, and that the photograph is copyrighted by Mr. Philpot.
18 12. Defendant has infringed Mr. Philpot’s copyright by reproducing, publicly
19 displaying, and publicly distributing the Lewis Photograph as part of the Farewell
20 Tour, without authorization or proper attribution as required under the terms of the
21 applicable license. On information and belief, Lynyrd Skynyrd used the Lewis
22 Photograph in the first twenty-two (22) of its Farewell Tour performances
23 (including its three California performances) as part of a video montage that
24 accompanied the musical performances. Lynyrd Skynyrd did not receive
25 permission from Mr. Philpot to use the photograph, nor did it provide proper
26 attribution to Mr. Philpot with the photograph. Defendant has also contributed to
27 infringement of the Lewis Photograph by enabling concert attendees, including
28 professional photographers and videographers, to take photographs and videos of

COMPLAINT -3- CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 5 of 9 Page ID #:5

1 the concerts and disseminate the recordings to others. On June 23, 2018, a video
2 recording of Defendant’s infringement was posted to YouTube at the following
3 URL (10:25 minute mark): https://www.youtube.com/watch?v=Y-GyW9-QE0g.
4 The YouTube recording captures an individual with a professional video camera
5 also recording the performance, including the display of the Lewis Photograph. A
6 screenshot of these infringements, taken on August 16, 2018, is attached hereto as
7 Exhibit D. Plaintiff discovered the infringement within three years prior to the
8 filing of this Complaint.
9 13. Lynyrd Skynyrd used the Lewis Photograph as part of its visual production
10 for the Farewell Tour to enhance the concert performances, all for Defendant’s
11 financial gain.
12 14. Defendant has reproduced, publicly distributed, and publicly displayed the
13 Lewis Photograph with the DMCA copyright management information stripped
14 from the photograph.
15 15. On or about August 7, 2018, Mr. Philpot, through counsel, sent a cease and
16 desist letter regarding the Lewis Photograph to Lynyrd Skynyrd at its Encino,
17 California mailing address and to its registered agent in Florida. A copy of the
18 cease and desist letter is attached as Exhibit E. A copy of the delivery
19 confirmations are attached as Exhibit F.
20 FIRST CLAIM FOR RELIEF
21 Copyright Infringement, 17 U.S.C. § 501
22 16. Plaintiff incorporates herein by reference the allegations in paragraphs 1
23 through 15, above.
24 17. Mr. Philpot is the owner of all rights, title, and interest in the copyright to
25 the Lewis Photograph, which consists of material wholly original with Plaintiff and
26 which is copyrighted subject matter under the laws of the United States. Mr.
27 Philpot has complied in all respects with the Copyright Act and all of the laws of
28 the United States governing copyrights. The Lewis Photograph has been timely

COMPLAINT -4- CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 6 of 9 Page ID #:6

1 registered with the United States Copyright Office, including for purposes of
2 Plaintiff’s recovery of attorneys’ fees and statutory damages.
3 18. Defendant has directly, vicariously and/or contributorily infringed Mr.
4 Philpot’s copyright in the Lewis Photograph by using the photograph as part of the
5 Farewell Tour, thus reproducing, displaying publicly, and distributing to the public
6 the photograph for purposes of trade in violation of 17 U.S.C. § 501 et seq.,
7 without attributing the photograph to Mr. Philpot and on information and belief,
8 after removing and/or altering the photograph’s identifying copyright management
9 information and/or having knowledge of its removal and/or alteration, and by
10 enabling concert attendees to further infringe the photograph.
11 19. On information and belief, Defendant has willfully infringed Mr. Philpot’s
12 copyright in the Lewis Photograph by using the photograph as part of the Farewell
13 Tour with knowledge that the photograph was protected by copyright and without
14 attributing the photograph to Mr. Philpot, after taking the photograph from
15 Wikimedia and/or other online locations which included copyright management
16 information, including metadata, and removing and/or altering the copyright
17 management information and/or having knowledge of its removal and/or alteration.
18 20. As a result of Defendant’s acts of copyright infringement as alleged herein,
19 Plaintiff has suffered substantial damages in an amount to be established at trial.
20 21. As a result of Defendant’s acts of copyright infringement as alleged herein,
21 Defendant has obtained direct and indirect profits it would not otherwise have
22 realized but for its infringements. As such, Plaintiff is entitled to disgorgement of
23 Defendant’s profits directly and indirectly attributable to Defendant’s
24 infringements, in an amount to be established at trial.
25 22. Plaintiff is informed and believes and thereon alleges that Defendant has
26 committed the acts of copyright infringement alleged herein with actual knowledge
27 or reckless conduct, thus acting in disregard to Plaintiff’s rights such that Plaintiff
28 is entitled to a finding of willful infringement and enhanced damages.

COMPLAINT -5- CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 7 of 9 Page ID #:7

1 SECOND CLAIM FOR RELIEF

2 For Violations of the Digital Millennium Copyright Act,
3 17 U.S.C. §§ 1202 and 1203
4 23. Plaintiff incorporates here by reference the allegations in paragraphs 1
5 through 22 above.
6 24. Plaintiff is informed and believes and thereon alleges that Defendant
7 violated 17 U.S.C. §1202 et seq. by intentionally removing and/or altering the
8 Lewis Photograph’s identifying copyright management information without the
9 authority of Mr. Philpot or the law, and/or by distributing the photograph with the
10 identifying copyright management information removed and/or altered, knowing
11 the same had been removed and/or altered without the authority of Mr. Philpot or
12 the law, knowing or having reasonable grounds to know that such actions would
13 induce, enable, facilitate, or conceal an infringement of Plaintiff’s rights.
14 25. Specifically, Plaintiff is informed and believes, and thereon alleges, that
15 Defendant took the Lewis Photograph from Wikimedia and/or other online
16 locations which included copyright management information, including metadata,
17 and without the authority of Mr. Philpot or the law, removed and/or altered that
18 copyright management information, and/or that Defendant took the photographs
19 knowing that the copyright management information had been removed and/or
20 altered without the authority of Mr. Philpot or the law, and used the photograph
21 knowing, or having reasonable grounds to know, that it would induce, enable,
22 facilitate, or conceal an infringement of Plaintiff’s rights.
23 26. The above conduct is in violation of the Digital Millennium Copyright Act
24 and exposes Defendant to additional and enhanced common law and statutory
25 damages and penalties, including in the form of Plaintiff’s costs and attorneys’
26 fees.
27 27. Plaintiff is informed and believes and thereon alleges that Defendant’s
28 conduct as alleged herein was willful, reckless, and/or with knowledge, and that

COMPLAINT -6- CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 8 of 9 Page ID #:8

1 Defendant acted knowing, or, with respect to civil remedies under section 1203,
2 having reasonable grounds to know, that its actions would induce, enable,
3 facilitate, or conceal an infringement of any right under this title, and that
4 Defendant also acted knowingly and with the intent to induce, enable, facilitate, or
5 conceal infringement, so that Plaintiff is entitled to seek enhanced damages and
6 penalties.
7 28. As a result of Defendant’s actions, Plaintiff has suffered substantial damages
8 in an amount to be established at trial.
9 29. As a result of Defendant’s actions, Defendant has obtained direct and
10 indirect profits it would not otherwise have realized. Plaintiff is entitled to
11 disgorgement of Defendant’s profits, in an amount to be established at trial.
12
13 PRAYER FOR RELIEF
14 WHEREFORE, Plaintiff requests judgment against Defendant as follows:
15 a. That Defendant and its respective agents and employees and those acting
16 in concert with them be enjoined from infringing Plaintiff’s copyrights in
17 any manner;
18 b. That Plaintiff be awarded all profits of Defendant, plus all losses of
19 Plaintiff, plus any other monetary advantage gained by Defendant
20 through its infringement, the exact sum to be proven at the time of trial,
21 or, if elected before final judgment, statutory damages under the
22 Copyright Act, 17 U.S.C. § 101 et seq.;
23 c. That Plaintiff be awarded damages for Defendant’s violations of 17
24 U.S.C. § 1202, including all available damages under 17 U.S.C. § 1203;
25 d. That Plaintiff be awarded its attorneys’ fees as available under the
26 Copyright Act 17 U.S.C. § 101 et seq.;
27 e. That Plaintiff be awarded pre-judgment interest as allowed by law;
28 f. That Plaintiff be awarded the costs of this action; and

COMPLAINT -7- CASE NO. 2:18-cv-7330

 Case 2:18-cv-07330 Document 1 Filed 08/21/18 Page 9 of 9 Page ID #:9

1 g. That Plaintiff be awarded such further legal and equitable relief as the
2 Court deems proper.
3
4 DEMAND FOR JURY TRIAL
5 Plaintiff Larry G. Philpot hereby demands trial by jury of all issues so triable
6 under the law.
7 Respectfully submitted,
8
9 Dated: August 21, 2018 By: /s/ Michael N. Zachary
Michael N. Zachary (SBN 112479)
10 mzachary@bdiplaw.com
11 Nicholas S. Mancuso (SBN 271668)
nmancuso@bdiplaw.com
12 Hillary N. Bunsow (SBN 278719)
13 hillarybunsow@bdiplaw.com
BUNSOW DE MORY LLP
14 701 El Camino Real
15 Redwood City, CA 94063
Telephone: (650) 351-7248
16 Facsimile: (650) 351-7253
17
Attorneys for Plaintiff
18 Larry G. Philpot
19
20
21
22
23
24
25
26
27
28

COMPLAINT -8- CASE NO. 2:18-cv-7330