Anatomy of a Lawsuit – Part II: The Answer

This is the second 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.)

PREVIOUSLY:
Anatomy of a Lawsuit Part I: Complaint and Summons
Kienitz sues Sconnie Nation, Underground Printing
Photographer may bring suit against Sconnie Nation

by Michael P. King, WNPA Secretary

The Defendants in Kienitz v. Sconnie Nation, LLC et al – Sconnie Nation LLC (“Sconnie”) and Underground Printing – Wisconsin, L.L.C. (“Underground”) – have officially responded to the complaint filed by plaintiff Michael Kienitz. The document was filed by their attorneys with the U.S. District Court for the Western District of Wisconsin on Aug. 9, 2012.

Answer (PDF)

The purpose of an answer is to persuade the court in the Defendant’s favor. It frequently refers to the original complaint, either admitting, denying or arguing a point made by the Plaintiff. Often they will present new ideas.

 

Introduction

In this section, Sconnie and Underground right away admit to creating a “transformed version” of the photograph in question. They go on to concede that the nature of their business is selling apparel at a retail store and online, but they deny allegations that their business model is based on the use of “taken or copied” celebrity photographs.

It is of note that the Defendants have chosen to use this “transformed version” phrase to describe the image as it appeared on the apparel. The Plaintiff used the word “copy.” The two phrases have starkly different connotations as they relate to copyright law and fair use doctrine.

In the third paragraph, the Defendants admit to putting this “transformed version” of the photograph on the apparel and selling the items. They deny that Kienitz is entitled to seeking damages and an injunction. They argue that the Copyright Act and U.S. Constitution provide them fair use of the photograph to create “a t-shirt that pokes fun of the Mayor and criticizes his policies.”

 

The Parties

There are several admissions and denials in this section. Perhaps of note is the Defendants’ response to the complaint’s allegation that “Underground Printing is the exclusive screen printer of Sconnie Nation’s apparel.” In the Answer, the Defendants “admit that Sconnie Nation uses Underground Printing’s screen printing services” (emphasis added in both citations).

 

Jurisdiction and Venue

In general, the Defendants are agreeing that the U.S. District Court is the proper court – and that the Western District of Wisconsin is the proper district – to decide on this matter.

 

Factual Background

Several times throughout this section there are denials based on lack of information. These are used to respond to a variety of allegations made by the Plaintiff regarding the creation and copyrighting of the work in question. In essence, the defendants are stating, “We don’t have enough information to believe the plaintiff’s allegation is true, so we deny it.” Sconnie and Underground use this response to Kienitz’s allegations that he took the photograph, that the photograph is registered with the copyright office, and that the photograph is used by the Mayor’s office with Kienitz’s permission.

The Defendants take some issue with paragraph 17 of the complaint, which asserted the photograph in question includes a photo credit. They respond by stating that the photograph doesn’t contain a copyright notice, and though they admit that the photograph currently contains a photo credit, it’s unknown if that credit was there “at all times relevant” to the lawsuit. “At all times” likely alludes to when Sconnie and Underground decided to use the photograph – or a “transformed version” of it – on their apparel.

 

First Cause of Action – Copyright Infringement

Here, Sconnie and Underground continue to argue that their action with Kienitz’s photograph is a protected fair use, and that what appeared on their apparel is a “transformed version.” Those who hoped Sconnie and Underground would describe in their Answer precisely how they transformed the photograph in question will be disappointed. They do not elaborate on their denial of the Plaintiff’s allegation that it is “substantially similar…and is indeed a copy.”  They reiterate that the photograph on the City of Madison website does not contain a copyright notice. They deny that Kienitz has been damaged by the infringement, and that they “have unjustly profited from it.”

 

Affirmative Defenses

Here, the Defendants request that the Court dismiss the case based on their fair use claim. They also claim that Sconnie Nation was not properly served with the complaint, although facts that support this claim are not apparent within the Answer. They are also requesting to be awarded attorneys fees.

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