Case 2:24-cv-09028-CBM-AGR Document 1 Filed 10/19/24 Page 1 of 7 Page ID #:1
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`
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`Peter E. Perkowski (SBN 199491)
`peter@perkowskilegal.com
`PERKOWSKI LEGAL, PC
`515 S. Flower Street
`Suite 1800
`Los Angeles, California 90071
`Telephone: (213) 340-5796
`
`Attorneys for Plaintiff
`RICHARD ONTIVEROS-GIMA
`
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`
`RICHARD ONTIVEROS-GIMA,
`
`
`
`Plaintiff,
`
`
`v.
`
`ELON MUSK,
`
`
`
`Defendant.
`
`
`Case No.: 2:24-cv-9028
`
`COMPLAINT FOR
`COPYRIGHT INFRINGEMENT
`
`
`
`
`Jury Trial Demanded
`
`Plaintiff Richard Ontiveros-Gima, for his Complaint against Defendant Elon
`Musk, alleges as follows:
`
`JURISDICTION
`This action arises under the Copyright Act of 1976, Title 17 U.S.C. § 101
`1.
`et seq. This Court therefore has jurisdiction over the subject matter of this action
`under 28 U.S.C. § 1331 (federal question) and § 1338 (copyright).
`PARTIES
`Plaintiff
`Plaintiff is a freelance photographer and regularly licenses photographs
`2.
`to numerous top-tier outlets. Throughout his career, he has worked with an array of
`globally recognized and prestigious clients, including industry leaders and iconic
`brands. His exceptional talent in photography has been sought after by numerous
`athletes and A-list celebrities. These collaborations underscore Mr. Ontiveros-Gima’s
`
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`COMPLAINT
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`Case 2:24-cv-09028-CBM-AGR Document 1 Filed 10/19/24 Page 2 of 7 Page ID #:2
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`talent and reputation within the industry. His photographs have graced magazines as
`well as the marketing materials and campaigns of world-renowned brands, a
`testament to his remarkable skill and ability to consistently deliver extraordinary
`visual content.
`3.
`Ontiveros-Gima and his agents conduct business as a syndicator of
`photos and features of popular content including magazines like defendant. The
`business model is predicated on licensing the use of works to many different licensees,
`each of which pays a fee to publish.
`4.
`Ontiveros-Gima is a resident of Brooklyn, New York.
`Defendant
`Defendant Elon Musk is an entrepreneur and businessman. On
`5.
`information and belief, Musk is a resident of the State of Texas.
`6. Musk owns and operates the social media platform X, formerly known as
`Twitter, and on information and belief he operates the account @elonmusk on that
`platform, publicly available at www.instagram.com/elonmusk, or is otherwise
`responsible for the content posted to that account.
`Personal Jurisdiction and Venue
`On information and belief, from about 1995 until at least 2024—
`7.
`encompassing the period that includes the infringement at issue in this matter—Musk
`resided in California.
`8.
`Even after moving his residence from California, Musk continues to have
`contacts with the State that are so continuous and systematic that exercising personal
`jurisdiction over him would be consistent with due process.
`9.
`Among other things, Musk is the principal owner or shareholder and/or
`corporate officer of at least five companies with principal offices in California:
`Neuralink Corp., a private neurotechnology corporation headquartered in Fremont;
`OpenAI, a private artificial intelligence company headquartered in San Francisco;
`Tesla Inc., which has production facilities in Lathrop and Fremont, development and
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`COMPLAINT
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`Case 2:24-cv-09028-CBM-AGR Document 1 Filed 10/19/24 Page 3 of 7 Page ID #:3
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`engineering facilities in Palo Alto and San Diego, and design facilities in Hawthorne;
`SpaceX, which operates a launch complex at Vandenberg Space Force Base and has
`significant development and corporate offices in Hawthorne; and X—the social media
`platform used for the infringement at issue in this matter—which until September
`2024 had corporate offices in San Francisco and still have large numbers of employees
`in Palo Alto and San Jose. On information and belief, Musk’s interests in and
`responsibilities with these companies require frequent contact with California officials
`and other California residents, as well as frequent visits to the State.
`10. Accordingly, this Court has personal jurisdiction over Musk because his
`contacts with the State of California are “so continuous and systematic” as to render
`him “at home” in the State.
`11. Venue in this judicial district is proper under 28 U.S.C. § 1400(a).
`BACKGROUND FACTS
`Plaintiff is the owner and copyright holder of a photographic image (the
`12.
`“Image”) depicting Musk wearing a red knight costume to a Halloween party. The
`Image was registered with the U.S. Copyright Office as Reg. No. VA 2-237-703 (eff.
`Nov. 6, 2022). The Image was registered with the U.S. Copyright Office within 90
`days of first publication.
`13.
`Plaintiff never licensed the Image to Musk. Nevertheless, Musk used the
`Image without authorization or permission to do so, and without paying a license fee.
`14.
`Specifically, on or around October 31, 2022, defendant or someone
`acting on his behalf copied the Image from Internet sources—on information and
`belief including legitimate licensees of plaintiff—altered the Image by cropping it,
`stored the Image on servers or computers, and displayed the Image on Musk’s social
`medical account @elonmusk on X.
`15. The Image is creative, distinctive, and—as evidenced by Musk’s use and
`misappropriation of it—valuable. Because of the Image’s quality, visual appeal, and
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`COMPLAINT
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`Case 2:24-cv-09028-CBM-AGR Document 1 Filed 10/19/24 Page 4 of 7 Page ID #:4
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`celebrity subject matter, plaintiff earned revenue from licensing it and stood to gain
`more revenue from licensing.
`16. Defendant’s unauthorized use of the Image harmed the existing and
`future market for it. Defendant’s Instagram post made the Image immediately
`available to his millions of followers and to the public, including consumers of
`entertainment and business news—and especially news and images of Musk
`himself—who would otherwise be interested in viewing licensed versions of the
`Image in the magazines, newspapers, and online publications that are plaintiff’s
`customers. In addition, defendant posted the Image to X on the same day it was
`initially published for licensing to customers—a critical time during which licensing
`activity is typically most robust.
`17. Defendant’s unauthorized use of the Image also harms plaintiff’s
`business model by driving down the prices for legitimately licensed celebrity images
`and driving away actual and potential customers. Plaintiff’s customers—among them,
`media companies who pay large license fees for celebrity visual content—are less
`likely to purchase licenses, or pay as much for a license, when the same visual content
`will be widely distributed simultaneously on publicly available websites and social
`media.
`18. As a businessman who owns a prominent social media platform, Musk
`operates in an industry in which copyrights are prevalent and well-understood. Based
`on that knowledge, Musk was aware of the importance of copyright protection and
`knew that he needed to have but did not have permission to use the Image, and/or he
`acted recklessly by posting the Image without determining the right to do so.
`19. Through his counsel, Musk was made aware of his infringement no later
`than December 1, 2022. Despite being on notice, Musk failed to remove the infringing
`post, which is still available at https://x.com/elonmusk/status/1587317099843796992
`at the time this Complaint was filed.
`///
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`COMPLAINT
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`Case 2:24-cv-09028-CBM-AGR Document 1 Filed 10/19/24 Page 5 of 7 Page ID #:5
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`CLAIM ONE
`(For Copyright Infringement, 17 U.S.C. § 501)
`20. Plaintiff realleges and incorporates by reference the allegations contained
`in the preceding paragraphs of this Complaint as if fully set forth here.
`21.
`Plaintiff is the copyright owner of the protected Image named above in
`this Complaint.
`22. Defendant has reproduced, displayed, or otherwise copied the Image
`without plaintiff’s authorization or license.
`23. The foregoing acts of defendant infringed upon the exclusive rights
`granted to copyright owners under 17 U.S.C. § 106 to display, reproduce, create
`derivative works, and distribute its work to the public. Such actions and conduct
`constitute copyright infringement in violation of 17 U.S.C. §§ 501 et seq.
`24. Plaintiff has complied in all respects with 17 U.S.C §§ 101 et seq. and
`secured and registered the exclusive rights and privileges in and to the copyrights of
`the above-referenced works in accordance with 17 U.S.C § 408.
`25. Plaintiff suffered damages as a result of defendant’s unauthorized use of
`the Image.
`26. Having timely registered copyright in the Image, plaintiff is entitled to
`elect statutory damages under 17 U.S.C. § 412 and § 504(c), in an amount of not less
`than $750 or more than $30,000 per infringement of each work registered before the
`infringements.
`27. Plaintiff alleges, on information and belief, that defendant’s actions were
`intentional or in reckless disregard of plaintiff’s copyrights, and that such actions
`support an award of enhanced statutory damages for willful infringement under the
`Copyright Act, 17 U.S.C. § 504(c)(2), in the sum of up to $150,000 per infringed
`work.
`///
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`COMPLAINT
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`Case 2:24-cv-09028-CBM-AGR Document 1 Filed 10/19/24 Page 6 of 7 Page ID #:6
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`In the alternative, plaintiff is entitled to recovery of its actual damages
`28.
`and defendant’s profits attributable to the infringement of the Images, under 17
`U.S.C. § 504(b).
`29. Within the time permitted by law, plaintiff will make its election between
`actual damages and profit disgorgement, or statutory damages.
`30. Plaintiff is also entitled to a discretionary award of attorney fees under 17
`U.S.C. § 412 and § 505.
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`PRAYER FOR RELIEF
`WHEREFORE, plaintiff request the following:
`A.
`For a preliminary and permanent injunction against defendant and
`anyone working in concert with her from further copying or displaying the Image;
`B.
`For an order requiring defendant to account to plaintiff for her profits
`and any damages sustained by plaintiff arising from the acts of infringement;
`C. As permitted under 17 U.S.C. § 503, for impoundment of all copies of
`the Image used in violation of plaintiff’s copyrights—including digital copies or any
`other means by which they could be used again by defendants without plaintiff’s
`authorization—as well as all related records and documents;
`D.
`For actual damages and all profits derived from the unauthorized use of
`the Image or, where applicable and at plaintiff’s election, statutory damages;
`E.
`For an award of pre-judgment interest as allowed by law;
`F.
`For reasonable attorney fees;
`G.
`For court costs and all other costs authorized under law;
`H.
`For such other and further relief as the Court deems just and proper.
`
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`///
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`6
`COMPLAINT
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`Case 2:24-cv-09028-CBM-AGR Document 1 Filed 10/19/24 Page 7 of 7 Page ID #:7
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`JURY DEMAND
`Plaintiff demands a trial by jury of all issues permitted by law.
`
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`Dated: October 19, 2024
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`Respectfully submitted,
`PERKOWSKI LEGAL, PC
`By:
` /s/ Peter Perkowski
`Peter E. Perkowski
`
`Attorneys for Plaintiff
`RICHARD ONTIVEROS-GIMA
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`COMPLAINT
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