Anatomy of a Lawsuit – Part I: Complaint and Summons

This is the first installation of a multi-part educational series about federal copyright lawsuits, using Kienitz v. Sconnie Nation, LLC et al, as an example. We’ll take a look at the court documents and attempt to make sense of them. If there are any oral arguments, we’ll analyze them. If there’s a ruling, we’ll break that down, too. (These columns should not be used as, or understood to be, legal advice. They are for educational and reporting purposes. We always advise consulting an attorney.)

 

by Michael P. King, WNPA Secretary

Over the past month or so, the Wisconsin News Photographers Association has been closely following what could be a significant case of alleged copyright infringement happening in our own backyard. Michael Kienitz, a Madison-based photographer and WNPA member, filed a federal lawsuit against Sconnie Nation, LLC, and Underground Printing, L.L.C., alleging they infringed his copyright to a photograph of Madison Mayor Paul Soglin. The suit and summons were filed with the U.S. District Court for the Western District of Wisconsin on June 28, 2012.

 

The Summons (PDF)

The body of the summons begins with seven words nobody ever wants to read: “A lawsuit has been filed against you.”

This document does several things:

  • identifies the parties in the lawsuit – the plaintiff is the party suing; the defendant(s) are those being sued
  • notifies the defendant that they are being sued
  • informs the defendant they must either answer the complaint or file a motion
  • informs the defendant how long they have to respond
  • informs the defendant of the consequences for not responding
  • contains a record of how the summons was “served” (delivered) to the defendant

Looking at the summons in Kienitz v. Sconnie Nation, LLC et al, we see that Kienitz is the plaintiff and the defendants are Sconnie Nation, LLC, and Underground Printing – Wisconsin, L.L.C. This particular summons was served to Troy Vosseller, the registered agent of Sconnie Nation.

The defendants are given 21 days (not including the day they got served) to respond to the complaint, either with an answer or a motion sent to Kienitz and/or his counsel. That response also has to be filed with the court. Assuming the summonses were served on the date they were filed (June 28), the defendants have a little more than a week from today (7/12/12) to respond.

Unfortunately for lawsuit defendants, they can’t just hope for a lawsuit to go away. The summons informs them they must respond, and failing to do so will result in a “judgement by default” for whatever the plaintiff demands in the complaint.

 

The Complaint and Exhibits (PDF)

First, it’s important to note that the complaint in Kienitz v. Sconnie Nation, LLC et al, is a civil complaint, not a criminal one. In criminal law, the state or federal government brings a defendant to trial and has to prove their guilt “beyond a reasonable doubt.” That doesn’t apply to this case. Civil law typically involves one party claiming another party’s actions caused them harm. The plaintiff seeks relief from and/or compensation for that harm. Instead of proving the defendant’s guilt “beyond a reasonable doubt,” the plaintiff has to prove the defendant’s responsibility through a “preponderance of the evidence.” So, in general, the burden of proof is significantly less in a civil case such as this.

It’s also important to keep in mind that the complaint is a persuasive document. While they often do contain indisputable facts, they are prepared by the plaintiff and their counsel and written from their perspective. It, along with the evidence, will be balanced by the judge and/or jury with the response(s) and evidence brought to the court by the defendants, which of course are written and prepared from their perspective.

This complaint does several things:

  • identifies the parties in the lawsuit
  • offers an introduction to the allegations
  • introduces, in greater detail, the parties involved
  • explains to the Court why it should hear the case
  • offers a “factual background” from the plaintiff’s perspective, supported by evidence “exhibits”
  • articulates the plaintiff’s claim that defendants caused harm or damage
  • concludes by asking for relief and compensation for that harm

 

Introduction

The complaint’s introduction states right away that it’s an “action for copyright infringement” based on the defendants’ sale of “Sorry for Partying” apparel. It takes aim at the defendants, alleging their business model “is premised in large part on the use of photographs of athletes and celebrities, and other images taken or copied from other sources.” The complaint argues that their use of Kienitz’s photograph of Soglin is not a fair use.

 

The Parties

This section briefly introduces Kienitz as a resident of Madison, Wis., and the defendants as businesses operating in Madison, Wisconsin. (see “Jurisdiction and Venue”)

 

Jurisdiction and Venue

There are many different “courts” in our justice system. It needs to be established that the Court being “complained to” is the proper one to hear the case. That’s what this section is all about. There are a lot of statute numbers being thrown around in this section, but the gist of the plaintiff’s argument is that the U.S. District Court has the ability to hear the case because they can uniquely hear cases dealing with copyright laws, and the Western District of Wisconsin is the proper district because a significant amount of the defendants’ activities take place within it.

 

Factual Background

This section offers evidence to support the plaintiff’s complaint. Exhibit A is a copy of Kienitz’s photograph of Soglin (the work in question). Attached as Exhibit B is a copy of the registration certificate provided by the U.S. Copyright Office.

The complaint goes on to say when the photograph was first published. It also states that the photograph was visibly credited to Kienitz upon publication. Publication of the photograph by the Mayor’s Office’s was by permission from Kienitz, it informs the Court. It doesn’t go into detail about the terms of that agreement; only that Kienitz retained ownership and copyright.

Exhibit C shows a photograph of one of the shirts allegedly produced by the defendants. The complaint goes on to call the image of Soglin on the shirts a “high-contrast copy” of Kienitz’s photograph. The complaint further alleges that that “on information and belief, [the defendants] knowingly copied [the photograph] directly from the City of Madison website for use on its shirts.”

 

First Cause of Action – Copyright Infringement

This section is the plaintiff’s claim of harm or damage. It alleges that Sconnie Nation and Underground Printing infringed Kienitz’s copyright; that the image on the apparel “is substantially similar, and is indeed a copy;” that the infringement was willful; and that the defendants have unjustly profited from the infringement. It doesn’t put a dollar figure on the amount of harm, leaving it to be determined at trial.

 

Conclusion

Here is where the plaintiff requests a judgement. Kienitz and his counsel are seeking a permanent injunction (in other words, a court-ordered stop) to the infringement and the sale/marketing of the shirts or any other items featuring the photograph of Soglin. The plaintiffs also request “an accounting of all sales and distribution” of the shirts. Monetary damages are unspecified, however the plaintiffs request the Court consider any and all profits Sconnie Nation and Underground Printing derived from the sale of the shirts, court costs, and any other relief the Court seems proper.

 

PREVIOUSLY:
Kienitz sues Sconnie Nation, Underground Printing

Photographer may bring suit against Sconnie Nation

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