`
`Case 1:21-cv-04523-PGG Document 18 Filed 08/19/21 Page 1 of 3Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 1 of 15
`
`Attorneys admitted in
`California, New York,
`Texas, Pennsylvania, and
`Maine
`
`Sender’s contact:
`scott@donigerlawfirm.com
`(310) 590-1820
`
`DELIVERED VIA ECF
`
`The Honorable Paul G. Gardephe
`United States District Court
`Southern District of New York
`40 Foley Square, Room 2204
`New York, New York 10007-1312
`
`Doniger / Burroughs Building
`Doniger / Burroughs Building
`603 Rose Avenue
`603 Rose Avenue
`Venice, California 90291
`Venice, California 90291
`
`New York Office
`Doniger / Burroughs NY
`295 Madison Avenue, 22nd Floor
`231 Norman Avenue, Suite 413
`New York, New York 10017
`Brooklyn, New York 11222
`
`Sender’s contact:
`MEMO ENDORSEMENT
`scott@donigerlawfirm.com
`(310) 590-1820
`Plaintiff’s request for leave to file the Amended
`Complaint is granted. Plaintiff will file the
`Amended Complaint by September 24, 2021. If
`Defendants intend to move to dismiss the
`Amended Complaint, they will file a letter by
`October 1, 2021 with a briefing schedule agreed
`upon by both parties.
`
`August 19, 2021
`
`Case Title:
`
`Re:
`
`Klauber Brothers, Inc. v. Badgley Mischka, LLC, et al.
`1:21-cv-04523-PGG
`Plaintiff’s Response to Defendants’ Request for
`September 20, 2021
`Conference Concerning Defendants’ Anticipated
`Motion to Dismiss
`
`Your Honor:
`
`This office represents Plaintiff Klauber Brothers, Inc. (“Klauber”) in the above-referenced case. We
`write in compliance with Rules I(A) and IV(A) of Your Honor’s Individual Rules in response to Defendant
`Badgley Mischka, LLC and Saks Incorporated’s (collectively, “Defendants”) August 16, 2021 letter requesting
`a pre-motion conference. See Dkt. No. 17. The contemplated motion is without merit, as follows:
`
`A.
`
`Klauber’s direct copyright infringement claims are sufficiently plead
`
`Klauber is a lace company that was founded in 1859 in Munich, Germany. The company operated there
`until it was seized by the Nazis during World War II. After the war ended, the company moved its headquarters
`to New York, New York, where it does business to this day. Klauber employs a design team to create unique
`and attractive lace designs and sells lace bearing those designs to its various customers in the fashion industry.
`Klauber’s copyrights were infringed when Defendantsa sold clothing featuring unauthorized knock-offs of
`Klauber’s original lace design 39092 X (the “Subject Design”) to the public.
`
`The Copyright Act protects copyright owners like Klauber by granting them exclusive right to
`“reproduce, distribute, and publicly display copies of the work.” 17 U.S.C. §106.b To adequately allege
`
`a Klauber has since learned that M.J.C.L.K., LLC, doing business as “Badgley Mischka”, may be the proper
`defendant instead of Badgley Mischka, LLC and will seek leave to amend its complaint to substitute this party,
`as reflected in the attached Exhibit 1.
`b These exclusive rights also include, inter alia, the right to prepare derivative works from the copyrighted
`material (17 U.S.C. §106(2)) and the right to distribute and sell product bearing the copyrighted work (17 U.S.C.
`§106(3)). To establish infringement, a claimant need only demonstrate the alleged infringers violated at least one
`1
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18 Filed 08/19/21 Page 2 of 3Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 2 of 15
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`copyright infringement, a plaintiff need only claim “(1) ownership of a valid copyright and (2) infringement of
`the copyright by the defendant.” Hamil Am. Inc. v. GFI, 193 F.3d 92, 98 (2d Cir. 1999) (citations omitted).
`Infringement means that “(1) the defendant[s] ha[ve] actually copied the plaintiff’s work; and (2) the copying is
`illegal because a substantial similarity exists between the defendant’s work and the protectible elements of
`plaintiff’s.” Id. at 99 (quotations and citations omitted). Actual copying may be proved directly or indirectly.
`“[I]ndirect evidence of copying includes proof that the defendants had access to the copyrighted work and
`similarities that are probative of copying between the works.” Id. (emphasis added).
`
`Here, Klauber has alleged that it owns a copyright registration covering the design at issue. (Complaint,
`¶ 11.) Klauber has also alleged that Defendants “without Plaintiff’s authorization […] created, sold,
`manufactured, caused to be manufactured, imported and/or distributed fabric and/or products incorporating
`fabric that bears artwork identical to or substantially similar to the Subject Design” (Complaint, ¶14.)
`Klauber’s allegations, taken together, satisfy the Hamil Am. Inc. requirements and are thus sufficient.
`
`Defendants blatantly ignore the “striking similarity” between the designs at issue. Defendants argue that
`there are “dissimilar total concepts and overall expression and feel between the respective designs, including
`different positioning, different directions, different designs, different patterns for the repeating of motifs,
`different colors, different scalloping, and more.” But this self-serving description fails. Defendants fail to
`illustrate where the alleged different positioning, directions, designs, and scalloping are located on the designs
`or explain how the designs differ in any way. Conversely, Klauber provided a comparison of its design and the
`design exploited on the products at issue and alleged that the “comparisons make apparent that the elements,
`composition, arrangement, layout, and appearance of the design on the items is substantially similar to the
`design at issue.” (Complaint ¶¶15-16, Dkt. No. 1.) Thus, Defendants’ claim that “Klauber has failed to allege
`any specific facts that would support a finding that the allegedly infringing design is substantially similar to
`Klauber’s design” is without merit. Considering the virtual identicality between the designs at issue, which is
`striking enough to preclude the possibility of independent creation, and construing all evidence in favor of
`Klauber, as we must do at this stage, Klauber has sufficiently alleged striking similarity between the designs.
`Nevertheless, Klauber will seek leave to amend its complaint to include additional access allegations and a
`more detailed comparison between the two designs, as reflected in Paragraph 17 of its proposed First Amended
`Complaint (“FAC”), which is attached hereto as Exhibit 1.
`
`B
`
`Klauber’s claims of vicarious and contributory liability are sufficiently pled
`
`As noted above, Klauber has adequately pled an underlying copyright violation. Its vicarious and
`contributory infringement claims are also sufficiently plead. Defendants groundlessly claim that “Klauber fails
`to properly plead any factual allegations showing that Defendants knew or could have known of the alleged
`direct infringement in real time, substantially participated in the alleged direct infringement, or exercised
`control over an unidentified party or parties several steps earlier in the chain of manufacture.” This is plainly
`false.
`
`To allege vicarious copyright infringement, a plaintiff must allege that the defendant[s] “[1] had the
`right and ability to supervise the infringing activity and ... [2] ha[ve] a direct financial interest in such
`activities.” Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 398, 434–35 (S.D.N.Y. 2011) (quoting
`Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). Here, Klauber has
`alleged that Defendants “knowingly induced, participated in, aided and abetted in and profited from the illegal
`
`exclusive right granted to copyright holders under 17 U.S.C. § 106. See 17 U.S.C. § 501(a) (infringement occurs
`when alleged infringer engages in activity listed in § 106).
`
`2 of 3
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`

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`
`reproduction and/or subsequent sales of garments featuring the Subject Design by, inter alia, directing the
`manufacture of or selection and sourcing of materials and designs for the Infringing Products or had agreements
`requiring the manufacture or sourcing of certain materials or designs, with the ability and right to supervise,
`direct, cancel, or otherwise modify its orders for the manufacture or purchase of the Infringing Products...
`Defendants had direct oversight or involvement in the sourcing of materials for and manufacture of the
`Infringing Products and thus knew, induced, caused, or materially contributed to the infringement of Plaintiff’s
`rights as alleged herein” (Complaint, ¶ 26.) Klauber also alleged that Defendants are “vicariously liable for the
`infringement [alleged in the Complaint] because they had the right and ability to supervise the infringing
`conduct and because they had a direct financial interest in the infringing conduct.” (Complaint, ¶ 28.) The exact
`relationship between the Defendants is presently unknown, but as Klauber has alleged, the Defendant retailers
`of the Infringing Products surely had the right to oversee their orders for the manufacture or purchase of the
`Infringing Products. (Complaint, ¶ 27.) This is sufficient to assert vicarious infringement.
`
`Additionally, “one who, with knowledge of the infringing activity, induces, causes or materially
`contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Gershwin
`Pub. Corp., 443 F.2d at 1162. As noted previously, Klauber specifically alleged that it sampled and sold lace
`bearing the Subject Designs “to numerous parties in the fashion and apparel industries.” (Complaint, ¶ 13.) And
`as noted above, Klauber has alleged access. (Complaint, ¶ 20.) At least some Defendants had knowledge of
`Klauber’s ownership, particularly given the parties’ litigation history. Thus, Klauber’s claims of secondary
`vicarious and/or contributory liability are sufficiently pled.
`
`Finally, any further details regarding the foregoing claims are solely within the possession of Defendants
`and as a result Klauber is not required to plead same. See Friedman v. Live Nation Merch., Inc., 833 F.3d 1180,
`1189 (9th Cir. 2016)(even at the summary judgment stage, a party need not submit facts solely within their
`adversary’s possession, a rule that “accords with ... our general precedent that fairness dictates that a litigant
`ought not have the burden of proof with respect to facts particularly within the knowledge of the opposing
`party.”)(citation omitted). The secondary liability claims are adequately pled.
`
`Defendants’ proposed motion does not appear to have merit. As such, it is respectfully requested that
`Defendants’ request to file said motion be declined, or, in the alternative, that Klauber be allowed to amend its
`complaint to cure the perceived deficiencies and obviate the need for, or streamline, Defendants’ motion
`practice.
`
`Thank you for your attention to this matter.
`
`Respectfully submitted,
`
` By: /s/ Scott Alan Burroughs
`Scott Alan Burroughs
`Laura M. Zaharia
`DONIGER / BURROUGHS
`For the Plaintiff
`
`3 of 3
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`
`EXHIBIT 1
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 2 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 5 of 15
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`KLAUBER BROTHERS, INC., a New York
`corporation,
`
`Plaintiff,
`
`
`v.
`
`M.J.C.L.K. LLC, individually and doing business
`as “Badgley Mischka”, a New York limited
`liability company; SAKS INCORPORATED, a
`Tennessee corporation; and DOES 1 through 10,
`
`Defendants.
`
`
`
`Civil Action No.: 1:21-cv-04523-PGG
`
`PLAINTIFF’S FIRST AMENDED
`COMPLAINT FOR:
`
`1. COPYRIGHT INFRINGEMENT and
`
`2. VICARIOUS AND/OR
`CONTRIBUTORY COPYRIGHT
`INFRINGEMENT
`
`
` Jury Trial Demanded
`
`Plaintiff Klauber Brothers, Inc., a New York corporation, by and through its undersigned
`
`attorneys, hereby prays to this honorable Court for relief based on the following:
`
`JURISDICTION AND VENUE
`
`This action arises under the Copyright Act of 1976, Title 17 U.S.C., § 101 et seq.
`
`This Court has federal question jurisdiction under 28 U.S.C. § 1331 and 1338 (a) and
`
`Venue in this judicial district is proper under 28 U.S.C. § 1391(c) and 1400(a) in that
`
`1.
`
`2.
`
`(b).
`
`3.
`
`this is the judicial district in which a substantial part of the acts and omissions giving rise to the
`
`claims occurred.
`
`PARTIES
`
`4.
`
`Plaintiff Klauber Brothers, Inc. (“Klauber” or “Plaintiff”) is a corporation organized
`
`and existing under the laws of the State of New York with its principal place of business in New
`
`York.
`
`5.
`
`Plaintiff is informed and believes and thereon alleges that Defendant M.J.C.L.K.
`
`LLC, individually and doing business as “Badgley Mischka” (“Badgley Mischka”) is a limited
`
`1
`FIRST AMENDED COMPLAINT
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 3 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 6 of 15
`
`liability company organized and existing under the laws of the State of New York with its
`
`principal place of business located at 133 West 52nd Street, 5th Floor, New York, New York
`
`10019.
`
`6.
`
`Plaintiff is informed and believes and thereon alleges that Defendant Saks
`
`Incorporated (“Saks”) is a corporation organized and existing under the laws of the State of
`
`Tennessee with its principal place of business located at 225 Liberty Street, New York, New York
`
`10281, and is doing business with the State of New York.
`
`7.
`
`Plaintiff is informed and believes and thereon alleges that some of Defendants Does 1
`
`through 3, inclusive, are manufacturers and/or vendors of products to Defendant, which Doe
`
`Defendants have manufactured and/or supplied and are manufacturing and/or supplying products
`
`bearing lace manufactured with Plaintiff’s copyrighted designs (as hereinafter defined) without
`
`Plaintiff’s knowledge or consent or have contributed to said infringement. The true names,
`
`whether corporate, individual or otherwise of Defendants Does 1-3, inclusive, are presently
`
`unknown to Plaintiff, which 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.
`
`8.
`
`Defendants Does 4 through 10, inclusive, are other parties not yet identified who have
`
`infringed Plaintiff’s copyrights, have contributed to the infringement of Plaintiff’s copyrights, or
`
`have engaged in one or more of the wrongful practices alleged herein. The true names, whether
`
`corporate, individual or otherwise, of Defendants 4 through 10, inclusive, are presently unknown
`
`to Plaintiff, which 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.
`
`9.
`
`Plaintiff 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 at all times acting within the scope of such
`
`2
`FIRST AMENDED COMPLAINT
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 4 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 7 of 15
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`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 to Plaintiff proximately caused thereby.
`CLAIMS RELATED TO DESIGNS 39092 X
`Prior to the conduct complained of herein, Plaintiff composed an original two-
`
`10.
`
`dimensional artwork for purposes of lace production. It allocated this design an internal design
`
`number 39092 X (“Subject Design”). This artwork was a creation of Plaintiff and/or Plaintiff’s
`
`design team, and is, and at all relevant times was, owned in exclusively by Plaintiff.
`
` Plaintiff owns a United States Copyright Registration covering the Subject Design
`11.
`under Registration No. VA 2-125-418.
`12. Prior to the acts complained of herein, Badgley Mischka had a business relationship with
`Plaintiff and received samples of Plaintiff’s lace designs.
`13. Prior to the acts complained of herein, Plaintiff sampled and sold over 23,881 yards of
`lace bearing the Subject Design to numerous parties in the retail and apparel industries, including
`many customers in New York City, where Badgley Mischka is located.
`Following this distribution of product bearing the Subject Design, Plaintiff’s
`14.
`investigation revealed that certain entities within the retail industries had misappropriated the
`Subject Design and were selling fabric and products bearing illegal reproductions and/or
`derivations of the Subject Design.
`Plaintiff is informed and believes and thereon alleges that, without Plaintiff’s
`15.
`authorization, Badgley Mischka, Saks, and others, including certain Doe defendants, created, sold,
`manufactured, caused to be manufactured, imported and/or distributed fabric and/or products
`incorporating fabric that bears artwork identical to or substantially similar to the Subject Design
`(“Infringing Products”). Such items include but are not limited to the products sold by Saks
`
`3
`FIRST AMENDED COMPLAINT
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 5 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 8 of 15
`
`bearing the Badgley Mishcka label under SKU No. 9523010871 and RN number 127117,
`indicating that it was manufactured by Badgley Mishcka.
`Below is a comparison of the Subject Design with exemplars of Infringing Product,
`16.
`which feature segments of lace incorporating at least a portion of the exact same unauthorized
`copy of the Subject Design:
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`///
`
`4
`FIRST AMENDED COMPLAINT
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 6 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 9 of 15
`
`Subject Design
`
`
`
`
`Infringing Product Exemplar
`
`
`
`
`
`Detail
`
`
`Detail
`
`
`
`
`
`
`
`
`
`
`
`
`5
`FIRST AMENDED COMPLAINT
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 7 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 10 of 15
`
`17.
`
`A more detailed comparison is provided below:
`
`Same Diamond
`Inside Diamonds
`with Similar Filling
`
`Same Overall
`Geometric Patterns
`in Similar
`Arrangement
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Same Arrangement
`of Curlicues
`
`
`
`The above comparisons make apparent that the elements, composition, arrangement,
`18.
`layout, and appearance of the design on the items is substantially similar to the design at issue.
`
`6
`FIRST AMENDED COMPLAINT
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 8 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 11 of 15
`
`FIRST CLAIM FOR RELIEF
`
`(For Copyright Infringement – Against All Defendants, and Each)
`
` Plaintiff repeats, realleges, and incorporates herein by reference as though fully set
`19.
`forth, the allegations contained in the preceding paragraphs of this Complaint.
` Plaintiff is informed and believes and thereon alleges that Defendants, and each of
`20.
`them, had access to the Subject Design including, without limitation, through (a) access to
`Plaintiff’s showroom and/or design library; (b) access to illegally distributed copies of the Subject
`Design by third-party vendors and/or Doe Defendants, including without limitation international
`and/or overseas converters and printing mills; (c) access to Plaintiff’s strike-offs and samples; and
`(d) garments manufactured and sold to the public bearing fabric lawfully printed with the Subject
`Design by Plaintiff for its customers.
` Plaintiff is informed and believes and thereon alleges that one or more of the
`21.
`Defendants manufactures garments and/or is a garment vendor. Plaintiff is further informed and
`believes and thereon alleges that said Defendant(s) has an ongoing business relationship with
`Defendant retailers, and each of them, and supplied garments to said retailers, which garments
`infringed the Subject Design in that said garments were composed of fabric which featured
`unauthorized print design(s) that were identical or substantially similar to the Subject Design , or
`were illegal derivations or modifications thereof.
`Plaintiff is informed and believes and thereon alleges that Defendants, and each of
`22.
`them, infringed Plaintiff’s copyrights by creating, making, and/or developing directly infringing
`and/or derivative works from the Subject Design and by producing, distributing and/or selling
`products which infringe the Subject Design through a network of retail stores, catalogues, and
`through on-line websites.
` Due to Defendants’ acts of infringement, Plaintiff has suffered substantial damages
`23.
`to its business in an amount to be established at trial.
` Due to Defendants’ acts of infringement, Plaintiff has suffered general and special
`24.
`damages in an amount to be established at trial.
`
`7
`FIRST AMENDED COMPLAINT
`
`

`

`
`
`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 9 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 12 of 15
`
` Due to Defendants’ acts of copyright infringement as alleged herein, Defendants, and
`25.
`each of them, have obtained direct and indirect profits they would not otherwise have realized but
`for their infringement of the Subject Design. As such, Plaintiff is entitled to disgorgement of
`Defendant’s profits directly and indirectly attributable to Defendant’s infringement of Plaintiff’s
`rights in the Subject Design in an amount to be established at trial.
` Plaintiff is informed and believes and thereon alleges that Defendants, and each of
`26.
`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 one hundred
`fifty thousand dollars ($150,000.00) per infringement. Within the time permitted by law, Plaintiff
`will make its election between actual damages and statutory damages.
`SECOND CLAIM FOR RELIEF
`
`(For Vicarious and/or Contributory Copyright Infringement - Against All Defendants)
`
` Plaintiff repeats, realleges, and incorporates herein by reference as though fully set
`27.
`forth, the allegations contained in the preceding paragraphs of this Complaint.
` Plaintiff is informed and believes and thereon alleges that Defendants knowingly
`28.
`induced, participated in, aided and abetted in and profited from the illegal reproduction and/or
`subsequent sales of garments featuring the Subject Design by, inter alia, directing the
`manufacture of or selection and sourcing of materials and designs for the Infringing Products or
`had agreements requiring the manufacture or sourcing of certain materials or designs, with the
`ability and right to supervise, direct, cancel, or otherwise modify its orders for the manufacture or
`purchase of the Infringing Products. Plaintiff is informed and believes and thereon alleges that
`Defendants had direct oversight or involvement in the sourcing of materials for and manufacture
`of the Infringing Products and thus knew, induced, caused, or materially contributed to the
`infringement of Plaintiff’s rights as alleged herein. The true and complete extent to which
`Defendants were involved in a network of infringement with as of yet undiscovered Doe
`Defendants and/or direct infringers will be ascertained during discovery in this action.
`
`8
`FIRST AMENDED COMPLAINT
`
`

`

`
`
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`
`Plaintiff is informed and believes and thereon alleges that each of the retailer
`29.
`Defendants had written agreements with Badgley Mischka such that each retailer Defendant had
`oversight and control over the sourcing of laces affixed to the Infringing Products.
` Plaintiff is informed and believes and thereon alleges that Defendants, and each of
`30.
`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.
`By reason of the Defendants’, and each of their, acts of contributory and vicarious
`31.
`infringement as alleged above, Plaintiff has suffered and will continue to suffer substantial
`damages to its business in an amount to be established at trial, as well as additional general and
`special damages in an amount to be established at trial.
` Due to Defendants’, and each of their acts of copyright infringement as alleged
`32.
`herein, Defendants, and each of them, have obtained direct and indirect profits they would not
`otherwise have realized but for their infringement of the Subject Design. As such, Plaintiff is
`entitled to disgorgement of Defendants’ profits directly and indirectly attributable to Defendants’
`infringement of Plaintiff’s rights in the Subject Design, in an amount to be established at trial.
` Plaintiff is informed and believes and thereon alleges that Defendants, and each of
`33.
`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 one hundred
`fifty thousand dollars ($150,000) per infringement. Within the time permitted by law, Plaintiff
`will make its election between actual damages and statutory damages.
`///
`///
`///
`///
`///
`
`9
`FIRST AMENDED COMPLAINT
`
`

`

`
`
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`
`PRAYER FOR RELIEF
`
`34. Wherefore, Plaintiff prays for judgment as follows:
`
`Against All Defendants
`
`
`
` With Respect to Each Claim for Relief
`
`a) That Defendants, their agents and employees be enjoined from infringing
`
`Plaintiff’s copyrights in any manner, specifically those for the Subject Design;
`
`b) That Plaintiff be awarded all profits of Defendants plus all losses of Plaintiff, plus
`
`any other monetary advantage gained by the Defendants through their
`
`infringement, the exact sum to be proven at the time of trial, or, if elected before
`
`final judgment, statutory damages as available under the Copyright Act, 17 U.S.C.
`
`§ 505 et seq.;
`
`c) That a trust be imposed over the revenues derived by Defendants, and each of
`
`them, through the sales or distribution of the product at issue;
`
`d) That Plaintiff be awarded its attorneys’ fees as available under the Copyright Act,
`
`17 U.S.C. § 505 et seq.;
`
`e) That Defendants, and each of them, account to Plaintiff for their profits and any
`
`damages sustained by Plaintiff arising from the foregoing acts of infringement;
`
`f) That Plaintiff be awarded pre-judgment interest as allowed by law;
`
`g) That Plaintiff be awarded the costs of this action; and
`
`h) That Plaintiff be awarded such further legal and equitable relief as the Court
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`deems proper.
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`///
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`///
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`///
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`Case 1:21-cv-04523-PGG Document 18-1 Filed 08/19/21 Page 12 of 12Case 1:21-cv-04523-PGG Document 21 Filed 09/20/21 Page 15 of 15
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`Plaintiff demands a jury trial on all issues so triable pursuant to Fed. R. Civ. P. 38 and the
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`7th Amendment to the United States Constitution.
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`Dated: August 19, 2021
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`Respectfully submitted,
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`By: /s/ Scott Alan Burroughs
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`Scott Alan Burroughs, Esq.
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`Laura M. Zaharia, Esq.
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`DONIGER / BURROUGHS
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`231 Norman Avenue, Suite 413
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`Brooklyn, New York 11222
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`(310) 590-1820
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`scott@donigerlawfirm.com
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`Attorneys for Plaintiff
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`11
`FIRST AMENDED COMPLAINT
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