Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 1 of 10. PageID #: 81
`
`
`
`
`American Hellenic Educational
`Progressive Association,
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`
`
`
`Case No. 1:19-cv-01814-DAP
`
`
`ANSWER AND COUNTERCLAIMS
`
`Plaintiff,
`
`
`
`PicRights Ltd.
`PicRights Europe GmbH
`Agence France-Presse,
`
`
`Defendants.
`
`
`
`
`
`
`
`Defendant AGENCE FRANCE-PRESSE, respectfully submits this Answer and
`
`accompanying Counterclaims in response to the Complaint filed by in the above-captioned
`
`matter:
`
`ANSWER
`
`
`
`Defendant hereby responds to the allegation(s) contained in each of the numbered
`
`paragraphs in the Plaintiff’s Complaint as follows:
`
`1. Defendant denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegation(s) in Paragraph 1, and thereby denies the allegations contained in Paragraph 1.
`
`
`2. Defendant denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegation(s) in Paragraph 2, and thereby denies the allegations contained in Paragraph 2.
`
`3. Defendant admits to the allegation(s) contained in Paragraph 3.
`
`4. Defendant denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegation(s) in Paragraph 4, and thereby denies the allegations contained in Paragraph 4.
`
`5. Defendant denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegation(s) in Paragraph 5, and thereby denies the allegations contained in Paragraph 5.
`
`
`
` 1
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 2 of 10. PageID #: 82
`
`
`
`6. The allegations contained in Paragraph 6 are irrelevant as Higbee & Associates is not
`a party to the action or an owner of the subject copyright. Defendant further notes that
`the basis for the allegations is inane as a Google search produces more than 14,000
`results for the term “Bigfoot In Ohio Federal Court” and “Gugliotta copyright troll.”
`Defendant denies the allegation(s) in Paragraph 6.
`7. Defendant denies the allegation(s) in Paragraph 7.
`
`8. The allegation(s) contained in Paragraph 8 contain legal conclusions to which no
`
`response is required. To the extent any response is required, Defendant denies the allegation(s)
`
`contained in Paragraph 8.
`
`9. The allegation(s) contained in Paragraph 9 contain legal conclusions to which no
`
`response is required. To the extent any response is required, Defendant denies the allegation(s)
`
`contained in Paragraph 8.
`
`10. The allegation(s) contained in Paragraph 10 contain legal conclusions to which no
`
`response is requiredTo the extent any response is required, Defendant denies the allegation(s)
`
`contained in Paragraph 10.
`
`11. The allegation(s) contained in Paragraph 11 contain legal conclusions to which no
`
`response is required. To the extent any response is required, Defendant denies the allegation(s)
`
`contained in Paragraph 11.
`
`12. Defendant admits that The Law Firm of Higbee & Associates sent the
`
`Plaintiff the letter (dated June 7, 2019) and attachments that are appended to the Complaint as
`
`“Exhibit D” (Doc #1-5) and referenced in Paragraph 12. Defendant denies the Plaintiff’s
`
`characterization of the letter as a “cease and desist letter” and denies the Plaintiff’s
`
`characterization of The Law Firm of Higbee & Associates as a “Copyright Troll”.
`
`13. Defendant admits that the aforementioned letter (dated June 7, 2019) was sent from
`
`
`
` 2
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 3 of 10. PageID #: 83
`
`
`
`The Law Firm of Higbee & Associates and signed by Attorney Mathew K. Higbee. Defendant
`
`denies that The Law Firm of Higbee & Associates purported in that letter to be “attorney in fact”
`
`14. Defendant denies the allegation(s) in Paragraph 14.
`
`15. Defendant denies the allegation(s) in Paragraph 15.
`
`16. Defendant denies the allegation(s) in Paragraph 16.
`
`17. The allegation(s) contained in Paragraph 17 contain legal conclusions to which no
`
`response is required. To the extent any response is required, Defendant denies the allegation(s)
`
`contained in Paragraph 34.
`
`18. Defendant denies the allegation(s) in Paragraph 18.
`
`19. Defendant denies the allegation(s) in Paragraph 19.
`
`20. Defendant denies the allegation(s) in Paragraph 20.
`
`21. Defendant denies the allegation(s) in Paragraph 21.
`
`22. Defendant admits that the Plaintiff’s claim purports to arise under the Declaratory
`
`Judgment Act, 28 USC § 2201 et seq., and the copyright laws of the United States, 17 USC § 101
`
`et seq., and that the Plaintiff is seeking the declaratory judgment as described. Defendant denies
`
`that the Plaintiff is entitled to such declaratory judgment, and denies the remainder of Paragraph
`
`22.
`
`23. Defendant denies the allegation(s) in Paragraph 23.
`
`24. Defendant denies the allegation(s) in Paragraph 24.
`
`25. Defendant denies the allegation(s) in Paragraph 25.
`
`26. Defendant admits that the Plaintiff is seeking such a declaratory judgment in this
`
`action. Defendant denies that the Plaintiff is entitled to such a declaratory judgment.
`
`27. Defendant denies the allegation(s) in Paragraph 27.
`
`28. Defendant admits that the Plaintiff’s claim purports to arise under the Declaratory
`
`
`
` 3
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 4 of 10. PageID #: 84
`
`
`
`Judgment Act, 28 USC § 2201 et seq., and the copyright laws of the United States, 17 USC § 101
`
`et seq., and that the Plaintiff is seeking the declaratory judgment as described. Defendant denies
`
`that the Plaintiff is entitled to such declaratory judgment, and denies the remainder of Paragraph
`
`28.
`
`29. Defendant admits that one or more of the defendants named in this action is the
`
`assignee and owner of the copyrighted materials which gave rise to this action.
`
`30. Defendant denies the allegation(s) in Paragraph 30.
`
`31. Defendant denies the allegation(s) in Paragraph 31.
`
`32. Defendant denies the allegation(s) in Paragraph 32. To the extent any response is
`
`required, Defendant denies the allegation(s) contained in Paragraph 32.
`
`33. The allegation(s) contained in Paragraph 33 contain legal conclusions to which no
`
`response is required. To the extent any response is required, Defendant denies the allegation(s)
`
`contained in Paragraph 33.
`
`34. The allegation(s) contained in Paragraph 34 contain legal conclusions to which no
`
`response is required. To the extent any response is required, Defendant denies the allegation(s)
`
`contained in Paragraph 34.
`
`35. Defendant admits that the copyrighted images giving rise to this action were not
`
`affixed with any copyright mark or copyright notice but denies that this fact provides the Plaintiff
`
`any legal defense against copyright infringement liability.
`
`36. Defendant denies the allegation(s) in Paragraph 36.
`
`37. Defendant denies the allegation(s) in Paragraph 37.
`
`38. Defendant admits that the copyrighted images giving rise to this action were not
`
`
`
` 4
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 5 of 10. PageID #: 85
`
`
`
`affixed with any copyright mark or copyright notice but denies that this fact provides the Plaintiff
`
`any legal defense against copyright infringement liability. Defendant also denies that AHEPA
`
`was not aware of or did not have reason to know its actions constituted copyright infringement.
`
`39. Defendant denies the allegation(s) in Paragraph 39.
`
`40. Defendant denies the allegation(s) in Paragraph 40.
`
`41. Defendant denies the allegation(s) in Paragraph 41.
`
`42. Defendant denies the allegation(s) in Paragraph 42.
`
`43. Defendant denies the allegation(s) in Paragraph 43.
`
`44. Defendant denies the allegation(s) in Paragraph 44.
`
`45. Defendant admits the allegation(s) contained in Paragraph 45.
`
`46. Defendant admits the allegation(s) contained in Paragraph 46 only to the extent that it
`
`appears to be an accurate quotation from a decision of the Ninth Circuit Court of Appeals, but
`
`denies that this standard for awarding attorney’s fees, as articulated in the quoted Ninth Circuit
`
`decision, is binding on this Court. Even if binding on this Court or otherwise applicable,
`
`Defendant denies that the Plaintiff is entitled to any award of attorney’s fees.
`
`47. Defendant admits the allegation(s) contained in Paragraph 47 only to the extent that
`
`they appear to be accurate quotations from certain decisions of the Ninth Circuit Court of Appeals
`
`and the United States Supreme Court. Defendant denies that the Plaintiff is entitled to any award
`
`of attorney’s fees.
`
`48. Defendant denies the allegation(s) in Paragraph 48.
`
`COUNTERCLAIMS
`
`
`
` 5
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 6 of 10. PageID #: 86
`
`
`
`Agence France-Presse (hereinafter “Counterclaim Plaintiff” or “AFP”) hereby asserts the
`
`following counterclaims against American Hellenic Educational Progressive Association
`
`(hereinafter “Counterclaim Defendant” or “AHEPA”):
`
`Jurisdiction & Venue
`
`1. This is a civil action seeking damages and injunction relief for copyright
`
`infringement under the Copyright Act of the United States, 17 U.S.C. § 101 et seq.
`
`2. This Court has subject-matter jurisdiction over Counterclaim Plaintiff’s claims
`
`for copyright infringement pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a).
`
`3. This Court has personal jurisdiction over Counterclaim Defendant because
`
`Counterclaim Defendant conducts business and/or resides within this judicial district,
`
`Counterclaim Defendant’s acts of infringement complained of herein occurred in this judicial
`
`district, and Counterclaim Defendant caused injury to Counterclaim Plaintiff within this judicial
`
`district.
`
`4. 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. Alternatively, venue is proper pursuant to 28 U.S.C. § 1400(b) because
`
`the Counterclaim Defendant resides and has a regular and established place of business in this
`
`judicial district.
`
`Parties
`
`5. Counterclaim Plaintiff (AFP) is an international news agency headquartered in Paris,
`
`France. It was founded in 1835 and is the world's oldest news agency, with with regional
`
`headquarters in Europe, Asia, and North America, and news bureaux in over 150 countries.
`
`6. Counterclaim Defendant (AHEPA) a fraternal organization with chapters across the
`
`
`
` 6
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 7 of 10. PageID #: 87
`
`
`
`United States, including in Cuyahoga County, Ohio. On information and belief, AHEPA
`
`generates hundreds of thousands, if not millions, of dollars in revenue from membership fees,
`
`charitable contributions and donations, and other sources.
`
`Factual Allegations
`
`7. AFP is an international news agency headquartered in Paris, France. It was founded in
`
`1835 and is the world's oldest news agency, with with regional headquarters in Europe, Asia, and
`
`North America, and news bureaux in over 150 countries.
`
`8. AFP is and was at all relevant times the sole rights holder of the
`
`following four unique and original copyrighted materials which gave rise to this
`
`action (individually attached as “Exhibits 1-4” and hereinafter collectively referred
`
`to as the “Copyrighted Images”):
`
`Exhibit
`
`Exhibit 1
`
`AFP Image # Date of Registration
`w/US Copyright Office
`05-07-2015
`
`462734632
`
`Registration #
`
`VA0002129693
`
`Exhibit 2
`
`486851901
`
`11-11-2014
`
`Exhibit 3
`
`473510366
`
`07-16-2015
`
`Exhibit 4
`
`472984578
`
`07-16-2015
`
`VA0002129685
`
`VA0002129698
`
`VA0002129698
`
`
`9. At all relevant times, Counterclaim Defendant (AHEPA) owned, operated, or
`
`otherwise controlled the following internet website and its affiliated webpages: https://ahepa.org
`
`(hereinafter the “AHEPA website”).
`
`10. On information and belief, AHEPA generates hundreds of thousands, if not millions,
`
`of dollars in revenue from membership fees, charitable contributions and donations, and other
`
`
`
` 7
`
`
`
`sources.
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 8 of 10. PageID #: 88
`
`
`
`11. The AHEPA website is one of the ways through which AHEPA communicates its
`
`messages, events and activities to its members and the general public, and is one of the ways
`
`through which it reaches thousands of potential members, donors and contributors to its
`
`organization.
`
`12. AFP has never transferred or otherwise assigned its rights to the Copyrighted
`
`Images to any persons or entities.
`
`13. AFP has never consented to, authorized, permitted, allowed, or given AHEPA a
`
`license (express or otherwise) to use AFP’s unique and original Copyrighted Images on
`
`AHEPA’s internet website or in any other capacity.
`
`14. In or about 2019, AFP discovered that AHEPA had been unlawfully using AFP’s
`
`Copyrighted Images on AHEPA’s website without a license, permission or authority. Many or
`
`all of the Copyrighted Images had been displayed on AHEPA’s website next to paid
`
`advertisements which provided AHEPA an additional source of income (in addition to
`
`membership fees, donations, and other sources of revenue).
`
`15. Attached hereto as Exhibit 5 are true and correct internet screenshots of AHEPA’s
`
`unlawful use of each of AFP’s Copyrighted Images (Exhibits 1-4) on AHEPA’s website.
`
`16. AHEPA’s unlawful, unauthorized use of the Copyrighted Images were deliberate and
`
`willful because AHEPA knew or should have known that the Copyrighted Images were registered
`
`and subject to protection under US copyright law, and knew or should have known that it had not
`
`obtained a prior license or permission to use the Copyrighted Images in the manner that it did.
`17. FP, through its counsel, made an earnest attempt to resolve this matter out of court. It
`sent letters and email communication to AHEPA and then its counsel. Instead of working with
`AFP through its counsel to resolve the matter out of court, AHEPA retained counsel who
`apparently preferred to rush the parties to court after he relied on the opinion of ill-informed
`
`
`
` 8
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 9 of 10. PageID #: 89
`
`
`
`bloggers and case law that has not been relevant since the Berne Convention Implementation Act
`of 1988 was enacted in March of 1989— more than three decades ago.
`
`
`
`First Cause of Action
`(Copyright Infringement)
`17 .S.C. § 101 et seq.
`
`17. AFP incorporates by reference all of the above paragraphs as though fully stated
`
`herein.
`
`18. AFP has never consented to, authorized, permitted, allowed, or given AHEPA a
`
`license (express or otherwise) to use AFP’s unique and original Copyrighted Images on AHEPA’s
`
`internet website or in any other capacity.
`
`19. AHEPA willfully infringed upon AFP’s Copyrighted Images in violation of Title 17 of
`
`the U.S. Code, in that it used, published, communicated, benefited through, posted, publicized,
`
`and otherwise held out to the public for commercial benefit, the original and unique Copyrighted
`
`Images belonging to AFP without AFP’s consent and without authority, and acquired monetary
`
`gain and market benefit as a result.
`
`20. As result of AHEPA’s violations of Title 17 of the U.S. Code, AFP is entitled to any
`
`actual damages pursuant to 17 U.S.C. §504(b), or statutory damages as set forth under 17 U.S.C.
`
`§ 504(c)
`
`21. AFP is also entitled to injunctive relief, pursuant to 17 U.S.C. § 502, to prevent or
`
`restrain AHEPA and any of its agents from committing any further or ongoing acts of
`
`infringement of AFP’s copyrighted materials, including the Copyrighted Images at issue in this
`
`matter.
`
`22. As a result of AHEPA’s violations of Title 17 of the U.S. code, the Court in its
`
`
`
` 9
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:19-cv-01814-DAP Doc #: 10 Filed: 11/15/19 10 of 10. PageID #: 90
`
`
`
`discretion may allow the recovery of reasonable attorney’s fees and costs pursuant to 17 U.S.C
`
`§505.
`
`Prayer for Relief
`
`WHEREFORE, Counterclaim Plaintiff (AFP) prays for judgment against the
`
`Counterclaim Defendant (AHEPA) as follows:
`
`A. For an award of actual damages and disgorgement of all of AHEPA’s profits
`attributable to the infringements as provided by 17 U.S.C. § 504 in an amount
`to be proven or, in the alternative, at Counterclaim Plaintiff’s election, an
`award for the maximum justifiable statutory damages against the Counterclaim
`Defendant for each infringement pursuant to 17 U.S.C. § 504(c), whichever is
`larger;
`B. For costs of litigation and reasonable attorney’s fees against the Counterclaim
`Defendant pursuant to 17 U.S.C. § 505;
`C. For an injunction preventing the Counterclaim Defendant (including its agents)
`from further infringement of any and all copyrighted materials of the the
`Counterclaim Plaintiff pursuant to 17 U.S.C. § 502;
`D. For any other relief the Court deems just and proper.
`
`Dated this 15th day of Nov. 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/ Mathew K. Higbee
`Mathew K. Higbee, Esq.
`HIGBEE & ASSOCIATES
`1504 Brookhollow Drive, Suite 112
`Santa Ana, CA 92705-5418
`Phone: (714) 617-8385
`Fax: (714) 617-8511
`Email: mhigbee@higbeeassociates.com
`Attorney for Defendant
`AGENCE FRANCE-PRESSE
`
`
`10
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`