Bathtime Fun

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NAOMI JANEGRAY (SBN230171)HARVEYSISKINDLLPFour Embarcadero Center, 39th FloorSan Francisco, California 941 1 1Telephone: (415) 354-0100Facsimile: (415)[email protected] forPlaintiffASHLEYCANDLER

UNITEDSTATESDISTRICTCOURTEASTERNDISTRICTOFCALIFORNIA

ASHLEYCANDLER, an individual.Plaintiff,

v.

SHANNONCARTER, an individual,Defendants

CaseNo.COMPLAINT

COMPLAINT CaseNo:

Case 2:13-cv-02072-LKK-CMK Document 1 Filed 10/07/13 Page 1 of 10


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PlaintiffAshleyCandler ("Candler"), byand throughher attorneys, Harvey Siskind LLP,alleges as follows:

JURISDICTIONANDVENUE1 . This action arises under the Copyright Act, 17 U.S.C. 101 et seq. This Court has

jurisdictionover this action pursuant to 28 U.S.C. 1338(b) and 1367.2. This Courthaspersonal jurisdiction overDefendant becauseDefendant explicitly

consented to the jurisdictionof this Court in a Digital MllenniumCopyrightAct ("DMCA")countemotice submitted toYouTubepursuant to 17 U.S.C. 512 (g). Moreover, on informationandbelief, Defendant resides in the StateofCalifornia, engaged in the infringing acts allegedhereinwithin the StateofCalifornia, andcausedharm to Candlerwithin the State ofCalifornia.

3 . Venue is proper in the EasternDistrict pursuant to 28 U.S.C. 1 3 9 1 and 1400(a) inthat, on information and belief. Defendant resides in theDistrict; a substantial part of the acts andomissions giving rise to Candler's claim occurred in theDistrict; andDefendant may be found intheDistrict.

PARTIES4. Candler is an individual residing inButte County, California.5 . On information andbelief. Defendant resides in or aroundthecityofBakersfield,

countyofKern, California.INTRODUCTION

6. This case stems fromDefendant's deliberate and flagrant acts ofcopyrightinfringement. Candler created an adorable videoofher toddler son, playing in the bathtubwith thefamilydogs, andposted it toYouTube for the enjoymentof family and friends. Defendantpromptly copied the video toher own YouTube channel andmonetized itbyauthorizing YouTubeto insert advertisements. Theseadvertisementsgenerate revenue toDefendant each time a viewerwatches the video. The videowent viral, and h as been viewedonDefendant's YouTube page over69million times.

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7. Candler sent a DMCA takedown notice to YouTube, resulting in removal of thevideo. Defendant, however, submitted a countemotice to YouTube, falsely representing that thetakedownwas done as the result ofmisidentification ormistake. When Candler's counselattempted to contact Defendant by certifiedmail at the address provided byDefendant in thecountemotice, Defendant refused to accept delivery of the letter.

8. Candler has tried diligently to resolve her dispute withDefendantwithout resort tolitigation. Defendant's knowing andwillful conduct reflects a determination to continue infringingno matter the consequences, leaving Candlerwith no choice but to file this Complaint in order toprotect her valuable intellectual property rights.

FACTS

9. Candler is themother ofa young son. Inor around December, 2010, Candler createda video entitled "BathTimeFun." The video displays her toddler son in the bathtub, teasing thefamily dachshundwith a bath toy. The dachshund repeatedly jumps for the toy and misses, causingCandler's son to laugh adorably. The video lasts approximately aminute. Candler owns U.S.Copyright RegistrationNo. PA 1829720 for the video.

10. On January 12, 201 1, Candler posted the video to YouTube so that friends andfamily could view it.

1 1 . The very next day, on January 1 3, 20 1 1 , Defendant copied the video to her publiclyavailable YouTube channel, sweetfacesjc. In a caption to the video, Defendant claimed that thevideo showed "my nephew cracking up while teasing the dogwith his toy. Original content takenbyme withmyDroid phone. I own all content copyrights to this video." These statements werefalse.

12. The video quickly went viral. At the time of this writing, the video had been viewedon the sweetfacesjc channel over 69million times.

13. On information and belief, in addition to copying and publicly displaying the videowithout authorization. Defendant has "monetized" the video byauthorizing YouTube to insertadvertisements into the video that play each time the video is clicked. On information and belief.Defendant is paid each time a viewer watches the videowith the advertisements.

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14. On information and belief, Defendant has also licensed "BathTime Fun" to thirdparties, and/or encouraged third parties to link to "BathTime Fun" or copy "Bath Time Fun" tothirdparty websites. In addition to YouTube, "BathTime Fun" has appeared on such websites aswww.mashable.com. www.cafemom.com, and others apparently hosted around theworld, allwithout Candler's authorization or knowledge. Some of these third-partywebsites, such aswww.mashable.com, link directly to "BathTime Fun" as it appears on Defendant's YouTubechannel.

15. OnMay 8,2013, Candler, through her attorneys, served aDMCA takedown noticeon YouTube pursuant to 17 U.S.C. 512(c)(3). On information and belief, YouTube forwarded thetakedown notice to Defendant, in accordancewith its copyright policy andDMCA 512. YouTubedisabled access to the video on the sweetfacesjc channel onMay 9, 2013.

16. Defendant served aDMCAcountemotice pursuant to 17 U.S.C. 512(g) onMay 13,2013. In that countemotice. Defendant swore under penalty ofperjury that she had a "good faithbelief that Candler's videowas removed fromDefendant's YouTube "due to amistake ormisidentificationof the material to be removed or disabled." This statement was false. Defendantcould not have had such a good faithbelief, as she did not create the video and owns no rights in it.

1 7. In the countemotice, Defendant also explicitly consented to the jurisdictionof theFederal District Court for the district inwhich her address was located, and provided a post officebox address in Bakersfield, California. Defendant's countemotice is annexed hereto as ExhibitA.

18. After YouTube forwarded the countemotice to Candler's counsel, counsel attemptedto contact Defendant by sending Defendant a letter by certifiedU.S. mail, return receipt requested,to the Bakersfield post office box address provided inDefendant's DMCA countemotice. The postoffice returned the letter to Candler's counsel, stating that Defendant had refused deliveryof theletter. Candler's counsel also attempted to contact Defendant by telephone, leaving two voicemailmessages for Defendant on the voicemail associated with the telephone number that Defendantprovided inherDMCAcountemotice. Defendant never responded to these messages.




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FIRSTCAUSEOFACTIONDIRECTCOPYRIGHTINFRINGEMENT

17U.S.C. 101 ETSEQ.1 9 . Candler realleges and incorporates byreferencethe allegationscontainedinparagraphs

1-18 ofthis Complaint.20. Candler owns, anda t all times relevanthereto h as owned, copyright in andto thevideo

"BathTime Fun."2 1 . Defendant hadaccess to "BathTimeFun," whichwasposted to Candler' s publicly

availableYouTube page on January 12, 2011.22. WithoutCandler's authorization or knowledge. Defendant copiedandposted "Bath

Time Fun" to Defendant'spublicly available YouTube page, sweetfacesjc on January 13, 201 1.23 . Candler notifiedDefendant that Defendant's actions infringedCandler' s rights in "Bath

Time Fun" byserving aDMCAtakedown noticeonYouTube in compliancewith 17U.S.C. 512(c).On information andbelief, YouTube forwardedthis takedown notice toDefendant, in accordancewithits copyright infringement policy and 17U.S.C. 512.

24. Defendant served a countemoticeon YouTubepursuant to 17 U.S.C. 512(g), falselyclaiming that "BathTimeFun" hadbeen taken down due tomistake ormisidentification. As a result.Defendant causedYouTube to restore access to "Bath TimeFun" on her YouTube channel,sweetfacesjc. Defendant h as continued to engage in infringing conduct bycontinuing to display "BathTime Fun" on herYouTube channel.

25. As a resultofher infringing conduct. Defendant h as realized and continues to realizeprofits andotherbenefits rightfullybelonging toCandler. Candler h as sufferedandwill continue tosuffer severe and irreparable damage as a resultofDefendant'sactions. Accordingly, Candler seeks anawardofdamagespursuant to 17 U.S.C. 504, in an amount tobedetermined. Candler also seekspreliminaryandpermanent injunctive relief, restrainingDefendant from furtherviolatingCandler'scopyright.

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SECONDCAUSEOFACTIONCONTRIBUTORYCOPYRIGHTINFRINGEMENT

17 U.S.C. 101 ETSEQ.26. Candler realleges and incorporates byreferencetheallegations contained inparagraphs

1-25 ofthis Complaint.27. Candler owns, andatall times relevant hereto hasowned, copyright in and to the video

"BathTime Fun."28. Defendanthadaccess to "BathTimeFun," whichwas posted to Candler'spublicly

available YouTube page on January 12, 201 1.29. Without Candler's authorization orknowledge, on information andbelief. Defendant

licensed "Bath Time Fun" to thirdparties, and/or encouraged thirdparties to link to "Bath TimeFun" or copy "BathTime Fun" to thirdpartywebsites. Thus, Defendant knew that these thirdparties were engaging in acts ofdirect copyright infringement, andparticipated substantially in theinfringing activities.

3 0. As a resultofher infringing conduct, Defendant h as realizedandcontinues to realizeprofits andotherbenefits rightfully belonging toCandler. Candler h as sufferedandwill continue tosuffer severe and irreparable damage as a resultofDefendant'sactions. Accordingly, Candler se ek s a nawardofdamagespursuant to 17 U.S.C. 504, in an amount to be determined. Candler also seekspreliminary andpermanent injunctive relief, restrainingDefendant from further violatingCandler'scopyright.

THIRDCAUSEOFACTIONMISREPRESENTATION17 U.S.C. 101 ETSEQ.

3 1 . Candler realleges and incorporatesby r efe ren ce t h e allegationscontainedin paragraphs1-30 ofthis Complaint.

3 2. Candlerowns, and at all timesrelevanthereto h as owned, copyright in and tothevideo"BathTimeFun."




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33 . Defendant had access to "Bath Time Fun,"which was posted to Candler's publiclyavailable YouTube page on January 12, 201 1.

34. Without Candler's authorization or knowledge, Defendant copied and posted "BathTime Fun" to Defendant's publicly available YouTube page, sweetfacesjc on January 13, 201 1.

35. Candler served aDMCA takedownnotice on YouTube in compliance with 17 U.S.C. 512(c).

36. Defendant served a countemotice on YouTube pursuant to 17 U.S.C. 5 12(g), falselyclaiming that "Bath Time Fun" had been taken down due tomistake ormisidentification. Defendantknew that these statements were false when shemade them. In reliance on Defendant's falsestatements in the countemotice, YouTube restored access to "Bath Time Fun" on Defendant'sYouTube channel, sweetfacesjc.

37. As a result ofYouTube's restorationof"BathTime Fun" to Defendant's YouTubechannel. Defendant has realized and continues to realize profits and other benefits rightfully belongingto Candler. Candler has suffered andwill continue to suffer severe and irreparable damage as a resultofDefendant's actions. Accordingly, Candler seeks an awardofdamages, including costs andattorneys' fees, pursuant to 17 U.S.C. 5 12(f), in an amount to be determined.

FOURTHCAUSEOFACTION

UNFAIRCOMPETITION

GAL. BUS &PROF.CODE 17200ETSEQ.38. Candler realleges and incorporates by reference the allegations contained in paragraphs

1-37 ofthis Complaint.39. Defendant's acts described above constitute unfair competition inviolation of

California Business &Professions Code 17200 et seq. (the "Unfair Practices Act"). The UnfairPractices Act provides that unfair competition shall mean and include "unlawful, unfair or fraudulentact or practice."

40. Defendant has engaged in unlawful and fraudulent conduct which constitutes unfaircompetition. This conduct includes, but is not limited to, (1) engaging in direct and contributory




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copyright infringement in violation ofU.S.C. 101 et seq.; and (2) submitting false andmisleadingstatements to YouTube in connectionwithherDMCA countemotice.

41 . Defendant's acts ofunfair competitionhave causedandwill continue to cause Candlerirreparableharm. Candler h as noadequate remedyof law forDefendant's unfair competition.

42. Candler isentitledto a judgment enjoiningand restraining Defendant fromengaging infurther actsofunfair competition.

PRAYERFORRELIEFWHEREFORE, Candler prays for relief as follows:1 . Entry of anorder and judgment requiring that Defendant andher agents, and all other

persons acting in concertwith her, be restrained andenjoined from reproducing, distributing,displaying or using in anymanner the video entitled "Bath Time Fun" or anyderivatives thereof;and

2. An awardofdamages, costs andattorneys' fees pursuant to 17 U.S.C. 504 and512(f), inan amount to bedetermined.

JURYTRIALDEMANDCandler hereby requests a trial byjury.

Dated: October 7, 2013 HARVEYSISKIND LLPNAOMI JANEGRAY

By:Naomi JaneGray

Attorneys forPlaintiffASHLEYCANDLER

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EXHIBITA



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Naomi Jane Gray

From: YouTube Service [mailto:[email protected]]Sent: Monday, May 13, 2013 11:14 AM

To: Marissa LaraSubject: Re: [#1282793171] New Copyright Counter-Notification

Hi there, We received the attached counter notification in response to a complaint you filedwith us. We're providing you with the counter notification and await your notice (in not morethan 10 business days) that you've filed an action seeking a court order to restrain the counternotifier's allegedly infringing activity. Such notice should be submitted by replying to thisemail. If we don't receive notice from you, we may reinstate the material to YouTube. If youhave any questions, please contact [email protected]. Sincerely, The YouTube TeamCounter-Notification as follows: Videos included in counter-notification:http://www.youtube.com/watch?v=GMuZdN84PJghttp://www.youtube.com/watch?v=fw5vgr4rRcoDisplay name of uploader: sweetfacesjc Iswear, under penalty of perjury, that I have a good faith belief the material was removed dueto a mistake or misidentification of the material to be removed or disabled. I consent to the

jurisdiction of the Federal District Court for the district in which my address is located, or if myaddress is outside of the United States, the judicial district in which YouTube is located, andwill accept service of process from the claimant. Shannon Carter PO BOX 9664 Bakersfield,CA 93389 [email protected] 3233013636

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