Case 4:21-cv-01138-PJH Document 1 Filed 02/16/21 Page 1 of 6
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`LAWRENCE G. TOWNSEND (SBN 88184)
`LAW OFFICES OF LAWRENCE G. TOWNSEND
`One Concord Center
`2300 Clayton Road, Suite 1400
`Concord, California 94520
`Telephone:
`415.882.3290
`Facsimile:
`415.882.3232
`Email: ltownsend@owe.com
`Attorney for Plaintiff
`JIM MARSHALL PHOTOGRAPHY LLC
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`JIM MARSHALL PHOTOGRAPHY LLC, a
`California limited liability company,
`Plaintiff,
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`vs.
`
`Case No.
`3:21-cv-1138
`COMPLAINT FOR COPYRIGHT
`INFRINGEMENT
`DEMAND FOR JURY TRIAL
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`LOS ANGELES TIMES
`COMMUNICATIONS LLC, a Delaware
`limited liability company; and APPLE INC., a
`Delaware corporation,
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`Defendants.
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`Plaintiff, Jim Marshall Photography LLC (“Marshall” or “Plaintiff”), for his complaint
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`against Defendants, Los Angeles Times Communications LLC (“LA Times”) and Apple, Inc.
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`(“Apple”) (collectively, “Defendants”), alleges:
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`JURISDICTION AND VENUE
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`1. Marshall’s claims arise under the copyright laws of the United States, 17 U.S.C. 101
`et. seq., (hereinafter the Copyright Act.).
`2.
`Subject matter and personal jurisdiction is vested in this Court pursuant to 28 U.S.C.
`1338. Additionally, this Court has subject matter jurisdiction under 28 U.S.C. 1331 inasmuch as
`this claim arises under the copyright laws of the United States. Venue in this judicial district is
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`Case 4:21-cv-01138-PJH Document 1 Filed 02/16/21 Page 2 of 6
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`proper pursuant to 28 U.S.C. 1400(a) and 28 U.S.C. 1391(b) and (c). Defendant LA Times
`conducts substantial business and is found in this judicial district. Apple is headquartered in
`Cupertino, California, and the harm caused to Plaintiff occurred in this judicial district.
`INTRADISTRICT ASSIGNMENT
`3. Intradistrict assignment is appropriate under local Rule 3-2(c) because this is an Intellectual
`Property Action.
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`THE PARTIES
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`4. Plaintiff Jim Marshall Photography LLC, based in San Francisco, California, is a limited
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`liability company organized and existing under the laws of the State of California. It is the
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`successor to Jim Marshall, the renowned photographer of countless photographic works of art,
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`who frequently evoked and captured in treasured images, as none others could, the human side of
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`iconic figures in jazz and rock music, most of which are from fifty or more years ago.
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`5. Defendant Los Angeles Times Communications LLC is a limited liability company
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`organized and existing under the laws of the State of Delaware and is the owner of the print and
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`digital media business that publishes the Los Angeles Times.
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`6. Defendant Apple Inc. is a corporation organized and existing under the laws of the State of
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`Delaware. Apple is a diversified technology company that, relevant to this case, conducts a
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`subscription media-distribution business called Apple News.
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`INTRODUCTORY FACTS
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`7. Jim Marshall, Plaintiff’s predecessor in interest took is the author (photographer) of a
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`famous image of Janis Joplin backstage at Winterland in San Francisco in 1968, lying on her side
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`and smiling, with one hand on hip and the other holding a bottle of Southern Comfort. Plaintiff, at
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`all times relevant herein, has been and is now the sole owner and proprietor of all right, title and
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`interest in and to the copyright in the subject image of Joplin (“Plaintiff’s Work”) at issue in this
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`matter.
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`8. Marshall has complied in all respects with Title 17, U.S.C. § 102, et seq., and all other
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`Case 4:21-cv-01138-PJH Document 1 Filed 02/16/21 Page 3 of 6
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`laws governing federal copyright applicable to Plaintiff’s Work and registered the copyrights with
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`the Register of Copyrights at the U.S. Copyright Office. The photograph was first published in the
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`book Not Fade Away and is covered by the registration therefor, bearing certificate number TX 6-
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`031-402, issued in 2004.
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`9. On October 2, 2020, the 50th anniversary of the death of Janis Joplin, Defendant LA Times
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`published an article entitled “Column: Janis Joplin died 50 years ago. Here’s why her loss still
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`resonates today.” Accompanying the article was a prominently-presented image of Plaintiff’s
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`Work.
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`10. Thereafter the article, featuring Plaintiff’s Work, was distributed and redistributed by
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`Apple in connection with its Apple News service. However, Apple did not just redistribute the
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`article; Apple used Plaintiff’s Work for the purpose of promoting, advertising, and selling
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`subscriptions to its Apple News service that includes the Los Angeles Times whose name and
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`suggested availability in the Apple News service appeared in a banner across the top of the screen.
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`The overwhelming and attention-grabbing power of the ad was the “in your face” display of
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`Plaintiff’s Work to its iPhone users, countless millions of whom were not Apple News subscribers
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`but were the intended targets of the ad. After taking in the alluring and richly expressive
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`photograph, viewers were then presented a call to action to accept this commercial proposition:
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`This story requires a
`subscription to Apple News+.
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`The ad then offered one month free service, to be followed by a monthly subscription price.
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`Case 4:21-cv-01138-PJH Document 1 Filed 02/16/21 Page 4 of 6
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`11. Plaintiff has only licensed Plaintiff’s Work for limited editorial uses. It has never been
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`licensed for advertising purposes at any price. Without Plaintiff’s permission, Plaintiff’s Work was
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`reproduced, distributed, and/or displayed by Defendants in print and digital versions of the LA
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`Times, for promotions of Apple News as described above, and likely by other means not yet
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`discovered by Plaintiff.
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`12. In October 2020 Plaintiff’s attorney sent a formal letter identifying the infringements and
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`seeking resolution for the unauthorized use. No resolution was accomplished.
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`CAUSES OF ACTION
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`COUNT I – NON-WILLFUL COPYRIGHT INFRINGEMENT
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`13. Plaintiff re-alleges and incorporates paragraphs 1 – 12 above as if recited verbatim.
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`14. Defendants have non-willfully infringed the copyright in Plaintiff’s Work
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`by scanning, copying, reproducing, distributing, displaying, publishing and/or otherwise using,
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`unauthorized copies of said photograph in violation of Title 17.
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`15. Upon information and belief, Defendants have benefitted from infringements of Plaintiff’s
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`Case 4:21-cv-01138-PJH Document 1 Filed 02/16/21 Page 5 of 6
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`Work, while Plaintiff has suffered and will continue to suffer monetary damages, irreparable injury
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`to his business, reputation, and goodwill, and dilution in the marketplace; therefore, Plaintiff is
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`entitled to injunctive relief, damages, and other relief set forth in the Title 17.
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`COUNT II – RECKLESS/WILLFUL COPYRIGHT INFRINGEMENT
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`16. Plaintiff re-alleges and incorporates paragraphs 1 – 15 above as if recited verbatim.
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`17. Alternatively, Defendants have recklessly/willfully infringed Plaintiff’s copyright in
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`and to Plaintiff’s Work by scanning, copying, reproducing, distributing, displaying, publishing
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`and/or otherwise using, unauthorized copies of said photograph for commercial purposes that they
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`in good faith could not have believed were granted by the copyright holder in violation of Title 17.
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`Wherefore, Plaintiff prays for judgment as follows:
`a. That Defendants, their agents, employees and/or servants be enjoined pendente lite and
`permanently from infringing Plaintiff’s copyrights in any manner whatsoever, and from
`publishing through any visual media, and from selling, marketing or otherwise distributing the
`Work, and from using it in marketing or advertising;
`b. That Defendants be required to deliver up, under oath, for impounding during the
`pendency of this action, and for destruction thereafter, all images of the Work that infringe
`Plaintiff’s copyrights, and all prints, film negatives, magnetic tapes, digitally scanned and/or
`stored images, and all other articles by means of which such infringing copies may be
`reproduced, which are in the possession or under the direct or indirect control of Infringers;
`c. That Defendants provide an accounting of all gains, profits and advantages derived by
`him as a result of the willful and unlawful acts of copyright infringement above-described;
`d. That Defendants be ordered to pay over to Plaintiff his actual damages sustained, in
`addition to all their profits attributable to the infringements, and which are not taken into account
`in computing Plaintiff’s actual damages incurred as a result of Defendants’ copyright
`infringements described herein, pursuant to 17 U.S.C. § 504(b);
`e. In the alternative, and at Plaintiff’s election after verdict, that Defendants be ordered
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`Case 4:21-cv-01138-PJH Document 1 Filed 02/16/21 Page 6 of 6
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`to pay maximum statutory damages in the amount $150,000 for Plaintiff’s Work infringed
`pursuant to 17 U.S.C. § 504(c), or such other amount as the jury may deem appropriate;
`f. That Defendants be ordered to pay to Plaintiff all of its costs and reasonable attorney's
`fees pursuant to 17 U.S.C. § 504(c) and §505; and
`g. That Plaintiff recover judgment for such other and further relief as this court deems
`just and proper, including maximum pre- and post-judgment interest on all sums due.
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`Dated: February 15, 2021
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`Law Offices of Lawrence G. Townsend
`s/Lawrence G. Townsend
`Lawrence G. Townsend
`Attorney for Plaintiff
`JIM MARSHALL PHOTOGRAPHY LLC
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`DEMAND FOR JURY TRIAL
`Plaintiff demands a jury trial for all claims as provided for in Rule 38 of the Federal
`Rules of Civil Procedure.
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`Dated: February 15, 2021
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`Law Offices of Lawrence G. Townsend
`s/Lawrence G. Townsend
`Lawrence G. Townsend
`Attorney for Plaintiff
`JIM MARSHALL PHOTOGRAPHY LLC
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