Case 2:23-cv-06753-JLS-SSC Document 1 Filed 08/17/23 Page 1 of 7 Page ID #:1
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`Scott Alan Burroughs (SBN 235718)
`scott@donigerlawfirm.com
`Trevor W. Barrett (SBN 287174)
`tbarrett@donigerlawfirm.com
`Frank R. Trechsel (SBN 312199)
`ftrechsel@donigerlawfirm.com
`DONIGER / BURROUGHS
`603 Rose Avenue
`Venice, California 90291
`Telephone: (310) 590-1820
`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Case No.:
`DR. ELLIOT MCGUCKEN, an
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`individual,
`PLAINTIFF’S COMPLAINT FOR:
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`1. COPYRIGHT INFRINGEMENT;
`Plaintiff,
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`2. VICARIOUS AND/OR
`v.
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`CONTRIBUTORY COPYRIGHT
`INFRINGEMENT
`VALNET, INC., a Canadian Corporation,
`individually, and doing business as
`“TheTravel.com”; and DOES 1-10,
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`Defendants.
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`Jury Trial Demanded
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`1
`COMPLAINT
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`Case 2:23-cv-06753-JLS-SSC Document 1 Filed 08/17/23 Page 2 of 7 Page ID #:2
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`Plaintiff, Dr. Elliot McGucken (“McGucken”), by and through his undersigned
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`attorneys, hereby prays to this honorable Court for relief based on the following:
`JURISDICTION AND VENUE
`1. This action arises under the Copyright Act of 1976, Title 17 U.S.C., § 101
`et seq.
`2. This Court has federal question jurisdiction under 28 U.S.C. § 1331 and
`1338 (a)-(b).
`3. Venue in this judicial district is proper under 28 U.S.C. § 1391(c) and
`1400(a) in that this is the judicial district in which a substantial part of the acts and
`omissions giving rise to the claims occurred.
`PARTIES
`Plaintiff McGucken is an individual residing in Los Angeles, California.
`4.
`McGucken is a renowned nature and landscape photographer.
`Plaintiff is informed and believes and thereon alleges that Defendant
`5.
`Valnet, Inc., which does business as, and owns and operates the website,
`https://www.thetravel.com/. Valnet, Inc. (“Valnet”), is a Canadian corporation that
`conducts business in the state of California including within this District.
`6. Defendants DOES 1 through 10, inclusive, are other parties who have
`infringed McGucken’s copyright, have contributed to the infringement of
`McGucken’s copyright, or have engaged in one or more of the wrongful practices
`alleged herein. The true names, whether corporate, individual or otherwise, of
`Defendants 1 through 10, inclusive, are presently unknown to McGucken, who
`therefore sues said Defendants by such fictitious names, and will seek leave to amend
`this Complaint to show their true names and capacities when same have been
`ascertained.
`7. McGucken is informed and believes and thereon alleges that at all times
`relevant hereto each of the Defendants was the agent, affiliate, officer, director,
`manager, principal, alter-ego, and/or employee of the remaining Defendants and was
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`COMPLAINT
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`Case 2:23-cv-06753-JLS-SSC Document 1 Filed 08/17/23 Page 3 of 7 Page ID #:3
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`at all times acting within the scope of such agency, affiliation, alter-ego relationship
`and/or employment; and actively participated in or subsequently ratified and adopted,
`or both, each and all of the acts or conduct alleged, with full knowledge of all the
`facts and circumstances, including, but not limited to, full knowledge of each and
`every violation of Plaintiff’s rights and the damages proximately caused thereby.
`CLAIMS RELATED TO MCGUCKEN’S PHOTOGRAPH
`8. McGucken is an acclaimed photographer who created and owns the
`original photographs depicted in Exhibit A attached hereto (“Subject Photographs.”)
`9. McGucken has registered the Subject Photographs and was granted U.S.
`copyright registrations as set forth in Exhibit A attached hereto.
`10. Prior to the acts complained of herein, McGucken published and widely
`publicly displayed and disseminated the Subject Photographs including without
`limitation on McGucken’s website at www.mcgucken.com.
`11. Following McGucken’s dissemination and display of the Subject
`Photographs, Defendants, and each of them displayed, distributed, created derivative
`works from, and/or otherwise exploited the Subject Photographs without license,
`authorization, or consent, including by displaying the Subject Photographs in articles
`on their website (“Infringing Uses”), which articles were created, published, and
`distributed by Valnet. The Infringing Uses were made widely and publicly available
`at https://www.thetravel.com/, which is owned and operated by Valnet. True and
`correct screen captures of the Infringing Uses, and its accompanying URL, are
`included in Exhibit A attached hereto.
`12. At a minimum, Defendants’, and each of their, display of the Subject
`Photographs to the public on their commercial website violated McGucken’s
`exclusive display right under 17 U.S.C. § 106 et seq.
`13. On information and belief, it is alleged that Valnet created the derivative
`articles at issue and incorporated McGucken’s photography and name into those
`articles without his consent.
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`COMPLAINT
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`Case 2:23-cv-06753-JLS-SSC Document 1 Filed 08/17/23 Page 4 of 7 Page ID #:4
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`14. McGucken has not in any way authorized Defendants, or any of them, to
`copy, reproduce, display, distribute, create derivative works of, or otherwise use the
`Subject Photographs.
`15. On January 3, 2023, McGucken, through his undersigned attorneys,
`served Defendants a letter demanding that Defendants cease and desist all infringing
`uses of McGucken’s copyrighted work and reasonably resolve the action. The parties
`were unable to resolve the matter, necessitating this action.
`FIRST CLAIM FOR RELIEF
`(For Copyright Infringement – Against all Defendants, and Each)
`16. McGucken repeats, re-alleges, and incorporates herein by reference as
`though fully set forth, the allegations contained in the preceding paragraphs of this
`Complaint.
`17. On information and belief, McGucken alleges that Defendants, and each
`of them, had access to the Subject Photographs, including, without limitation,
`through viewing the Subject Photographs on McGucken’s website and social media
`accounts. Access is further evidenced by the Subject Photographs’ exact
`reproductions in the Infringing Uses.
`18. On information and belief, McGucken alleges that Defendants, and each
`of them, copied, reproduced, displayed, and/or distributed the Subject Photographs,
`including without limitation as seen in Infringing Uses attached hereto.
`19. On information and belief, McGucken alleges that Defendants, and each
`of them, infringed McGucken’s copyrights by creating infringing derivative works
`from the Subject Photographs and publishing same to the public.
`20. Due to Defendants’, and each of their, acts of infringement, McGucken
`has suffered general and special damages in an amount to be established at trial.
`21. Due to Defendants’, and each of their, acts of copyright infringement as
`alleged herein, Defendants, and each of them, have obtained direct and indirect
`profits they would not otherwise have realized but for their infringement of
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`Case 2:23-cv-06753-JLS-SSC Document 1 Filed 08/17/23 Page 5 of 7 Page ID #:5
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`McGucken’s rights in the Subject Photographs. As such, McGucken is entitled to
`disgorgement of Defendants’ profits directly and indirectly attributable to
`Defendants’ infringement of McGucken’s rights in the Subject Photographs in an
`amount to be established at trial.
`22. On information and belief, McGucken alleges that Defendants, and each
`of them, have committed acts of copyright infringement, as alleged above, which
`were willful, intentional and malicious, which further subjects Defendants, and each
`of them, to liability for statutory damages under Section 504(c)(2) of the Copyright
`Act in the sum of up to $150,000.00 per infringement and/or a preclusion from
`asserting certain equitable and other defenses.
`SECOND CLAIM FOR RELIEF
`(For Vicarious and/or Contributory Copyright Infringement – Against all
`Defendants, and Each)
`23. McGucken repeats, re-alleges, and incorporates herein by reference as
`though fully set forth, the allegations contained in the preceding paragraphs of this
`Complaint.
`24. On information and belief, McGucken alleges that Defendants knowingly
`induced, participated in, aided and abetted in and profited from the illegal
`reproduction and distribution of the Subject Photographs as alleged hereinabove.
`Such conduct included, without limitation, displaying photographs that Defendants
`knew, or should have known, were not authorized to be published by Defendants.
`25. On information and belief, McGucken alleges that Defendants, and each
`of them, are vicariously liable for the infringement alleged herein because they had
`the right and ability to supervise the infringing conduct and because they had a direct
`financial interest in the infringing conduct. Specifically, Defendants, and each of
`them, profited in connection with the Infringing Uses, and were able to supervise the
`distribution, broadcast, and publication of the Infringing Uses.
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`5
`COMPLAINT
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`Case 2:23-cv-06753-JLS-SSC Document 1 Filed 08/17/23 Page 6 of 7 Page ID #:6
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`26. By reason of the Defendants’, and each of their, acts of contributory and
`vicarious infringement as alleged above, McGucken has suffered general and special
`damages in an amount to be established at trial.
`27. Due to Defendants’ acts of copyright infringement as alleged herein,
`Defendants, and each of them, have obtained direct and indirect profits they would
`not otherwise have realized but for their infringement of McGucken’s rights in the
`Subject Photographs. As such, McGucken is entitled to disgorgement of Defendants’
`profits directly and indirectly attributable to Defendants’ infringement of
`McGucken’s rights in the Subject Photographs, in an amount to be established at
`trial.
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`28. On information and belief, McGucken alleges that Defendants, and each
`of them, have committed acts of copyright infringement, as alleged above, which
`were willful, intentional and malicious, which further subjects Defendants, and each
`of them, to liability for statutory damages under Section 504(c)(2) of the Copyright
`Act in the sum of up to $150,000.00 per infringement and/or a preclusion from
`asserting certain equitable and other defenses.
`PRAYER FOR RELIEF
`Wherefore, Plaintiff prays for judgment as follows:
`Against all Defendants, and Each with Respect to Each Claim for Relief:
`a. That Defendants, and each of them, as well as their employees, agents,
`or anyone acting in concert with them, be enjoined from infringing
`McGucken’s copyrights in the Subject Photographs, including without
`limitation an order requiring Defendants, and each of them, to remove
`any content incorporating, in whole or in part, the Subject Photographs
`from any print, web, or other publication owned, operated, or controlled
`by any Defendant.
`b. That McGucken be awarded all profits of Defendants, and each of them,
`plus all losses of McGucken, plus any other monetary advantage gained
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`6
`COMPLAINT
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`Case 2:23-cv-06753-JLS-SSC Document 1 Filed 08/17/23 Page 7 of 7 Page ID #:7
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`by the Defendants, and each of them, through their infringement, the
`exact sum to be proven at the time of trial, and, to the extent available,
`statutory damages as available under the 17 U.S.C. § 504 and other
`applicable law.
`c. That a constructive trust be entered over any revenues or other proceeds
`realized by Defendants, and each of them, through their infringement of
`McGucken’s intellectual property rights;
`d. That McGucken be awarded his attorneys’ fees as available under the
`Copyright Act U.S.C. § 505 et seq.;
`e. That McGucken be awarded his costs and fees under the above statutes;
`f. That McGucken be awarded statutory and enhanced damages under the
`statutes set forth above;
`g. That McGucken be awarded pre-judgment interest as allowed by law;
`h. That McGucken be awarded the costs of this action; and
`i. That McGucken be awarded such further legal and equitable relief as the
`Court deems proper.
`Plaintiff demands a jury trial on all issues so triable pursuant to Fed. R. Civ. P.
`38 and the 7th Amendment to the United States Constitution.
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`Dated: August 17, 2023
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`Respectfully submitted,
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`DONIGER / BURROUGHS
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`By: /s/ Scott Alan Burroughs
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`Scott Alan Burroughs, Esq.
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`Trevor W. Barrett, Esq.
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`Frank R. Trechsel, Esq.
`Attorneys for Plaintiff
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`7
`COMPLAINT
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