Kargman v. Just the Story - copyright complaint.pdf

8/19/2019 Kargman v. Just the Story - copyright complaint.pdf

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Adam Kargman, Esq., SBN 21210916060 Ventura BoulevardSuite 110 #228Encino, California 91436Telephone: (818) 809-5226Email: [email protected]

In Pro Se

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ADAM KARGMAN,an individual;

Plaintiff,

vs.

JUST THE STORY LLC,a California limited liabilitycompany; and

CARTER MASON,an individual,

Defendants.

Case No. ___________________

COMPLAINT FOR:

1)

COPYRIGHT INFRINGEMENT;

2)

BREACH OF CONTRACT;

3) FALSE DESIGNATION OFORIGIN; and

4)

AN ACCOUNTING.

DEMAND FOR JURY TRIAL

Case 2:16-cv-01656-FMO-SS Document 1 Filed 03/10/16 Page 1 of 16 Page ID #:1


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Plaintiff Adam Kargman (“Plaintiff”), complaining of the above-named

Defendants, alleges as follows, which allegations are based upon information and

belief insofar as they pertain to the Defendants’ identities and conduct:

I. PRELIMINARY STATEMENT.

1. This is a case of brazen and willful copyright infringement, egregious

failure to pay royalties, and unfair competition.

2. Plaintiff is an award-winning independent filmmaker. He is the author

and copyright owner of the acclaimed short film Loud and Deep (the “Film”), a

15-minute slapstick comedy.

3. Defendants are (a) Just the Story LLC (“JTS”), a subscription-based,

Internet television network that operates the website www.jts.tv (the “Website”), and

(b) its CEO, Managing Member, and Co-Founder, Carter Mason (“Mason”).

4. In January 2014, Plaintiff made the fateful decision to enter into a Digital

Distribution Agreement (the “Agreement”) with JTS, in which he agreed to license

the Film to JTS in exchange for royalty payments that were to be paid quarterly.

5. In November 2015, after JTS had utterly failed to pay Plaintiff royalties

for five consecutive quarters, Plaintiff terminated the Agreement.6. Nonetheless, long after the Agreement and any license JTS had to

distribute the Film terminated, Defendants JTS and Mason (collectively,

“Defendants”) brazenly continued to distribute it. Defendants have ignored

Plaintiff’s repeated cease and desist demands, threatened him, and lied to him, falsely

claiming that they “removed Loud and Deep from JTS” when they had not. To do this

day, Defendants are continuing to illegally distribute the Film and profit from it,

infringing Plaintiff’s exclusive rights under the United States Copyright Act (the

“Copyright Act”). To date, Defendants have also failed to pay Plaintiff his accrued

royalties.

7. Through their lies, deceit, false promises, willful infringement, failure to

comply with multiple cease-and-desist demands, failure to communicate, threats, and



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other misconduct, Defendants have virtually invited this lawsuit.

II. THE PARTIES.

8. Plaintiff is a resident of Los Angeles County, California.

9. Defendant Just the Story LLC (“JTS”) is a limited liability company

organized and existing under the laws of the State of California with its principal place

of business in Redondo Beach, California. JTS bills itself as “a premium digital

television network” that is “committed to bringing . . . top quality independent shows

and films.” For a subscription fee of $3.99 per month or $39.99 per year, users

“gain[ ] access to all shows on JTS.TV across multiple viewing platforms, including

web, tablet and mobile.” According to its website, JTS has “a clear and open financial

model where half of all subscription revenue received goes directly to the

creators/owners,” in furtherance of “the vision of the network to provide creators with

a fair and sustainable partnership.”

10. Defendant Carter Mason (“Mason”) is a resident of Los Angeles County,

California. He is the CEO, Managing Member, and Co-Founder of JTS. According

to the Website, Mason “has worked in the entertainment industry for almost a decade

as an actor, writer, and producer.” Mason also operates The Carter Mason Group(www.cartermasongroup.com), based in Redondo Beach, California, through which

he purports to provide entertainment clients with “legal consulting,” “legal

workshop[s],” and “any and all . . . legal and business consulting needs” – even

though Mason is not a licensed California attorney.

11. At all times relevant hereto, Mason was acting as an agent or employee

for JTS and in the course and scope of said agency of employment.

III. JURISDICTION AND VENUE.

12. This Court has subject matter jurisdiction over this matter pursuant to

pursuant to Title 28, United States Code, sections 1331 and 1338(a) and (b) because

this action arises under the Copyright Act, Title 17, United States Code,

sections 101 et seq., and the Lanham Act, Title 15, United States Code,



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sections 1121 et seq. This Court also has supplemental jurisdiction, pursuant to

Title 28, United States Code, section 1367(a), over Plaintiff’s claims that arise under

the laws of the State of California.

13. This Court has personal jurisdiction over JTS pursuant to Federal Rule of

Civil Procedure 4(k)(1)(A) and California Code of Civil Procedure section 410.10, in

that JTS resides and transacts business in the State of California.

14. This Court has personal jurisdiction over Mason pursuant to Federal Rule

of Civil Procedure 4(k)(1)(A) and California Code of Civil Procedure section 410.10,

in that Mason resides and transacts business in the State of California.

15. Venue for this matter properly lies within the Central District of

California pursuant to Title 28, United States Code, section 1391(b)(2), in that (a) JTS

resides in this judicial district; (b) Mason resides in this judicial district; (c) all

defendants are residents of this state; and (d) a substantial part of the events and

omissions giving rise to Plaintiff’s claims occurred in this district.

IV. GENERAL ALLEGATIONS.

The Film.A.

16.

Plaintiff is the author and sole copyright owner of the Film. Uponcompleting the Film in 2013, Plaintiff registered it with the United States Copyright

Office (Registration No. PAu-3-667-450), which registration became effective on

March 7, 2013.

17. Around the time that Plaintiff completed the Film, Plaintiff also created

the Loud and Deep Poster (the “Poster”) for purposes of promoting and marketing the

Film. The Poster is shown below:

/ / /

/ / /

/ / /

/ / /

/ / /



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The Digital Distribution Agreement.B.

18. On January 14, 2014, Mason contacted Plaintiff and told him, “We’re

interested in having your hilarious short film, Loud and Deep, on JTS.TV.”

19. On January 26, 2014, Plaintiff entered into the Agreement with JTS. The

Agreement provided, in pertinent part, as follows:

(a) Plaintiff granted JTS, during the contractual term (discussed

below), a nonexclusive license to distribute, reproduce, and display the Film “by way

of online or other electronic forms of distribution.”

(b) JTS promised to pay a quarterly royalty (the “Royalty”) to

Plaintiff. The Royalty earned for each calendar quarter, along with a report (the

“Quarterly Report”) detailing the net receipts for that quarter and the computation of

the Royalty, were due “[w]ithin 30 days of the end of each Calendar Quarter.”

(c) The Royalty was to be calculated as follows: “50% of net revenue

after transaction fees and affiliate payments received by JTS.TV goes into a content

creator’s pool where the money is distributed monthly to producers based on the

percentage of viewing by JTS.TV subscribers. For example, if there is $10,000 in the

content creator’s pool, and a producer’s share is 10%, that producer would receive$1,000 as their monthly royalty disbursement.”

(d) JTS promised that “ there will be a guaranteed payment each

quarter beginning with the quarter the [Film] is released.” (Emphasis added.)

(e) JTS promised “to act in good faith at all times toward [Plaintiff]”



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and to “openly report the breakdown of revenue.”

(f) The initial term of the Agreement was 12 months. After the

expiration of the initial term, the Agreement was to continue indefinitely on the same

terms and conditions, unless and until either party terminated the Agreement by giving

at least 30 days notice.

20. On February 1, 2014, Plaintiff delivered the Film, the Poster, and other

materials to Defendants.

21. Defendants released the Film on the Website in February 2014, within 21

days of delivery of the Film.

22. In or about May or June 2014, Plaintiff received a handwritten check

from JTS for the Royalty for the first quarter of 2014. The check amount was

two dollars. No Quarterly Report was provided to Plaintiff; thus, he had no way of

verifying whether he was being paid what he was owed.

23. To date, Plaintiff has received no further Royalties from JTS. Plaintiff

has never been furnished with a Quarterly Report for any calendar quarter.

24. The initial term of the Agreement ended no later than February 22, 2015.

The Agreement continued in effect because, at that time, neither party gave notice oftermination.

Plaintiff Terminates the Agreement.C.

25. On November 1, 2015, after JTS had (a) failed to pay Plaintiff any

Royalties for five consecutive calendar quarters, and (b) failed to issue a single

Quarterly Report, Plaintiff served notice of termination of the Agreement.

26. Mason responded that same day, acknowledging that he “received the

notice” and “I’m disappointed to see the film go!” He further stated: “[W]e owe you

some royalties. We’ve had issues with the person who handled payments, and I’m

trying to take over that responsibility. We’ll be getting payments out again by the end

of the year.”

/ / /



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Plaintiff’s January 2016 Cease-and-Desist Demand.D.

27. On January 26, 2016, after discovering that JTS was still distributing,

reproducing, and displaying the Film, Plaintiff sent a cease-and-desist demand to

Defendants (the “January 2016 Cease-and-Desist Demand”), demanding that they

“IMMEDIATELY (1) remove [the Film] from [the] site, including all associated

trailers, photos, and other media, and provide confirmation that [they] have done so,

and (2) remit all owed royalties.”

28. Defendants failed to respond to, or take any action in response to, the

January 2016 Case-and-Desist Demand. Instead, Defendants continued to brazenly

infringe the Film.

Plaintiff’s February 2016 Cease-and-Desist Demand.E.

29. On February 8, 2016, Plaintiff sent another cease-and-desist demand to

Defendants (the “February 2016 Cease-and-Desist Demand”). In it, Plaintiff stated

quite unequivocally:

Within five (5) days, I expect to receive: (1) written confirmationfrom you that you have ceased distributing “Loud and Deep” and haveremoved it, and all associated trailers, photos, and other media, fromwww.jts.tv; (2) payment of all unpaid royalties, plus 10% interest on

any past due amounts; and (3) all quarterly reports from January 2014to present. If you fail to comply with this demand, I intend to sue.

The letter warned Defendants of their potential liability and monetary exposure, and

cited legal authority. Plaintiff served the letter by both email and U.S.P.S. Certified

mail.

30. Mason responded by email that same day (February 8), acknowledging

receipt of both the January and February 2016 Cease-and-Desist Demands. Mason

stated:

I’m working on royalty payments this week . . . . I’m taking [theFilm] down first thing after I get out royalty payments as a courtesy toyou and not waiting until the end of this term. Royalties are a priorityfor me, since we are so dreadfully behind. I now have control of allthat I need to in order for me to make payments, so that is my top

priority this week.

Mason promised that Plaintiff would get a Royalty check “next week.” He also



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claimed to have sent “several replies” to Plaintiff, but “the JTS.TV emails are getting

rejected,” and “I encourage you to check with your email provider to find out why

legitimate emails are not getting through.”

31. The next day, February 9, 2016, Plaintiff responded to Mason’s email,

stating, “I’m not aware of any problem with my email. Please attach the other emails

you claim to have sent me.” Plaintiff also warned that “the film needs to be taken off

your site immediately. If it has not been taken down by Saturday [February 13, 2016],

I intend to sue.”

32. Later that day, February 9, Mason responded with a belligerent email.

He repeatedly claimed that Plaintiff was “accusing [him] of lying.” He stated: “This

is my plan, and I’m not changing it: I am going to pay royalties first before taking

down [the Film].” (Emphasis added.) He claimed that JTS was “a one-man show

now” and he was “doing everything by [him]self.” He promised to “ mak[e] payments

before Saturday[, February 13, 2016]” and “ make sure [Plaintiff would be] paid first

in the list of payments.” (Emphasis added.) He further promised to take down the

Film “ by Saturday,” but only “as a courtesy” to Plaintiff, because, according Mason,

the term of the Agreement somehow did not end for another “full month and a little bitof time.” (Emphasis added.) Mason threatened: “We have 25 hours of pre-trial

protection if you plan to sue,” and if “I get a legal notice . . . I will send said notice to

our attorneys.” Finally, Mason stated that “this is the end of our communication” and

“[y]ou will not receive any more correspondence from me.”

33. Mason’s February 9, 2016 email is set forth in full below:

/ / /

/ / /

/ / /

/ / /

/ / /

/ / /



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34. Several minutes after sending this email, Mason sent another email to

Plaintiff, stating: “I take honesty and integrity seriously.”

Defendants’ Continued Lies, Deceit, False Promises, andF.Willful Infringement.

35. On Saturday, February 13, 2016, Mason emailed Plaintiff and falsely

stated: “I . . . remove[d] Loud and Deep from JTS.TV.” In fact, the Film had not been

removed from the Website.

36. In that same email, Mason claimed that he was “unable to complete

royalties this week due to a health issue.” He falsely promised that he would “get

royalty payments out early next week.”

37. As of the filing date of this Complaint, March 10, 2016, Defendants have

continued, unabated, to willfully infringe the Film. The following screenshot, taken

on March 9, 2016, is currently displayed on the Website at the URL

www.jts.tv/previews/loudanddeep:

/ / /

/ / /



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38. As shown above, the page prominently displays the Poster – underneath

JTS’s trademark – and the title “Loud and Deep.” It states that users can “WATCH

NOW.” It urges users to “Start Your Free Trial,” or pay $39.99 for a “Discounted

Yearly Pass,” or pay $3.99 for a “Monthly Pass.” When a non-subscriber clicks on

the “WATCH NOW” button, a trailer for the Film plays. The trailer features nearly

two minutes of footage, music, and sound from the Film, including key scenes that

constitute the heart of the Film. The trailer is preceded by JTS’s trademark.

39.

As of the filing of this Complaint, Plaintiff has still not received the promised Royalties or any Quarterly Reports, and has received no further updates

from Defendants.

Mason’s Liability.G.

40. Under the Copyright Act, liability for copyright infringement extends to



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any person in the chain of infringement. Plaintiff is informed and believes, and

thereon alleges, that Mason was a primary actor in the chain of infringement, and that

he personally was responsible for posting, continuing to post, hosting, and failing to

remove the Film from the Website, based on the following:

(a) By Mason’s own admission, JTS is a “ a one-man show” and he,

Mason, “ do[es] everything by [him]self ” (emphasis added);

(b) On February 8, 2016, Mason represented to Plaintiff that he

(Mason) would personally handle the removal of the Film from the Website;

(c) On February 9, 2016, Mason again represented to Plaintiff that he

(Mason) would personally handle the removal of the Film from the Website;

(d)

Mason falsely represented to Plaintiff that the Film had been

removed from the Website by himself (Mason) as of February 13, 2016;

(e) Virtually all of Plaintiff’s communications with JTS were with

Mason;

(f) Mason executed the Agreement on behalf of JTS;

(g) Mason sent the Agreement to Plaintiff;

(h)

[email protected] – which Plaintiff is informed and believes is one of Mason’s email addresses – is the registrant email and administrative

email associated with the Website;

(i) Mason is the CEO, Managing Member, and Co-Founder of

JTS; and

(j) Mason holds himself out as an expert and sophisticate in law and

business who is able to attend to “any and all . . . legal and business consulting

needs”; thus, Plaintiff is informed and believes, and thereon alleges, that Mason’s

actions were knowing, strategic, and deliberate, and he was at all times fully aware of

the legal implications of his conduct.

/ / /

/ / /



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FIRST CAUSE OF ACTION

COPYRIGHT INFRINGEMENT

(17 U.S.C. §§ 106 and 501)

(By Plaintiff Against All Defendants)

41. Plaintiff repeats and realleges paragraphs 1 through 40 of this Complaint

as if fully alleged herein.

42. As alleged above, Plaintiff authored the Film, complied with all laws

governing copyright, and secured the exclusive rights and privileges in and to the

copyright of the Film.

43. Without consent, authorization, approval, or license, Defendants, through

their acts alleged herein, have infringed Plaintiff’s exclusive rights of reproduction,

distribution and display of the Film, in violation of sections 106 and 501 of the

Copyright Act, 17 U.S.C. §§ 106 and 501.

44. Pursuant to 17 U.S.C. section 504(a)(2) and (c), Plaintiff is entitled to

recover an award of statutory damages for Defendants’ acts of copyright infringement,

and such damages should be increased to the statutory maximum of $150,000 because

Defendants’ infringement has been willful.45. Pursuant 17 U.S.C. section 502, Plaintiff has and will continue to sustain

irreparable harm as a result of Defendants’ conduct, and he is without an adequate

remedy at law. Plaintiff is informed and believes, and on that basis alleges, that unless

enjoined and restrained by this Court, Defendants will continue to infringe Plaintiff’s

exclusive rights in the Film. Plaintiff is, therefore, entitled to preliminary and

permanent injunctive relief to restrain and enjoin Defendants’ continuing infringing

conduct.

46. Pursuant 17 U.S.C. section 503, Plaintiff is entitled to the impoundment

and destruction of all copies of the Film made or used by Defendants.

47. Pursuant to 17 U.S.C. section 505, Plaintiff is entitled to costs of suit and

any attorney’s fees that he may incur.



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SECOND CAUSE OF ACTION

BREACH OF CONTRACT

(By Plaintiff Against JTS)



49. The Agreement is a valid and enforceable contract.

50. Plaintiff performed all of his obligations under the Agreement.

51. JTS failed to comply with the terms of the Agreement and failed to fulfill

its obligations under the Agreement, by (a) failing to pay Plaintiff the Royalties due to

him, and (b) failing to provide Quarterly Reports.

52.

By reason of the foregoing, JTS has materially breached its contractual

obligations to Plaintiff under the Agreement.

53. JTS’s material breach of the Agreement is the legal cause of substantial

damages to Plaintiff, for which Plaintiff seeks monetary damages in an amount to be

determined at the time of trial.

THIRD CAUSE OF ACTION

FALSE DESIGNATION OF ORIGIN(Lanham Act § 43(a), 15 U.S.C. § 1125(a))

(By Plaintiff Against All Defendants)



55. Upon termination of the Agreement, any affiliation, connection, or

association between the Film, on the one hand, and Defendants, on the other, ended.

56. Defendants’ continued (a) display and distribution of the Film and the

Poster on the Website, (b) display and distribution of the Film and the Poster on

webpages displaying JTS’s trademark, (c) and display and distribution of a trailer for

the Film preceded by a display of JTS’a trademark, constitute uses in interstate

commerce and a false designation of origin, false or misleading description of fact, or



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false or misleading representation of fact, which is likely to cause confusion, or to

cause mistake, or to deceive, as to the affiliation, connection, or association between

the Film and JTS.

57. Such false designation of origin, false or misleading description, or false

or misleading representation is an infringement of Plaintiffs rights in violation of the

Lanham Act section 43(a), 15 U.S.C. § 1125(a).

58. Pursuant to 15 U.S.C. section 1117(a), Plaintiff is entitled to recover the

damages suffered by him, Defendants’ profits, and costs of suit.

FOURTH CAUSE OF ACTION

ACCOUNTING

(By Plaintiff Against JTS)



60. Defendants have failed and refused to provide Plaintiff with Quarterly

Reports, as required under the Agreement.

61. The amount of Royalties owed to Plaintiff is unknown to him at this time

and can only be determined with certainty by JTS. 62. Therefore, the Court should order JTS to provide Plaintiff with a complete

and accurate accounting of all Royalties owed to him.

PRAYER FOR RELIEF

Wherefore, Plaintiff prays for judgment against Defendants, and each of them,

as follows:

As to the First Cause of Action for Copyright Infringement:

1.

For statutory damages in the amount of $150,000, pursuant to 17 U.S.C.

section 504(a)(2) and (c);

2. For an injunction, pursuant to 17 U.S.C. section 502;

3. For an Order directing that all copies of the Film in Defendants’

possession, custody, or control be impounded and destroyed, pursuant to



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17 U.S.C. section 503;

4. For Plaintiff’s costs of suit, pursuant to 17 U.S.C. section 505; and

5. For any attorney’s fees that Plaintiff may incur, pursuant to 17 U.S.C.

section 505.

As to the Second Cause of Action for Breach of Contract:

1. For compensatory damages.

As to the Third Cause of Action for False Designation of Origin:

1. For Plaintiff’s damages, pursuant to 15 U.S.C. section 1117(a);

2. For Defendants’ profits, pursuant to 15 U.S.C. section 1117(a);

3. For an injunction; and

4.

For Plaintiff’s costs of suit, pursuant to 15 U.S.C. section 1117(a).

As to the Fourth Cause of Action for an Accounting:

1. For an accounting at JTS’s expense by an independent certified public

accountant appointed by the Court.

For All Causes of Action:

1. For prejudgment interest at the maximum rate permitted by law; and

2.

For such other and further relief as the Court may deem just and proper.

Dated: March 10, 2016

By: /s/ Adam Kargman

ADAM KARGMAN In Pro Se



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DEMAND FOR JURY TRIAL

Plaintiff Adam Kargman hereby requests a jury trial on all issues properly

triable to a jury.

Dated: March 10, 2016

By: /s/ Adam Kargman

ADAM KARGMAN In Pro Se


Kargman v. Just the Story - copyright complaint.pdf

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