Case 2:20-cv-06803 Document 1 Filed 07/29/20 Page 1 of 13 Page ID #:1

1 Peter R. Afrasiabi (Bar No. 193336)

[email protected]
2 ONE LLP
4000 MacArthur Boulevard
3 Each Tower, Suite 500
Newport Beach, CA 92660
4 Telephone: (949) 502-2870
Facsimile: (949) 258-5081
5
David Quinto (Bar No. 106232)
6 Joanna Ardalan (Bar No. 285384)
[email protected]
7 ONE LLP
9301 Wilshire Boulevard
8 Penthouse Suite
Beverly Hills, CA 90210
9 Telephone: (310) 866-5157
Facsimile: (310) 943-2085
10
Attorneys for Plaintiffs
11 Backgrid USA, Inc., Splash News and
Picture Agency, LLC, Xposure Photo
12 Agency, Inc.
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA
15
16 BACKGRID USA, INC., a California Case No.: 2:20-cv-06803
corporation; SPLASH NEWS AND
17
PICTURE AGENCY, LLC, a Nevada COMPLAINT FOR:
18 limited liability company; XPOSURE 1) COPYRIGHT
PHOTO AGENCY INC., a California INFRINGEMENT
19
corporation, (17 U.S.C. § 501)
20 2) DECLARATORY RELIEF
Plaintiffs, UNDER 17 U.S.C. § 512(G)
21
3) MISREPRESENTATION
22 v. UNDER 17 U.S.C. § 512(F)
23
ENTTECH MEDIA GROUP LLC. a DEMAND FOR JURY TRIAL
24 Delaware limited liability company; and
25 DOES 1-10, inclusive,

26
Defendants.
27
28

COMPLAINT
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1 Plaintiffs Backgrid USA, Inc., Splash News and Picture Agency, LLC, and
2 Xposure Photo Agency, Inc. complain against Defendant EntTech Media Group
3 LLC, a limited liability company, and Does 1-10 (collectively, “Defendants”) as
4 follows:
5 JURISDICTION AND VENUE
6 1. This is a civil action against Defendants for acts of copyright
7 infringement under the Copyright Act, 17 U.S.C. §§ 101 et seq., for Declaratory
8 Relief under 27 U.S.C. § 2201, and misrepresentation under 17 U.S.C. § 512(f).
9 This Court has subject matter jurisdiction under 28 U.S.C. § 1331, 17 U.S.C. §
10 501(a), and 28 U.S.C. § 1338(a) and (b).
11 2. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and (c) and
12 28 U.S.C. § 1400(a) in that the claim arises in this judicial district, and, on
13 information and belief, the Defendants and their agents reside and may be found in
14 this judicial district, and the injury suffered by Plaintiff took place in this judicial
15 district. For example, on information and belief, Defendant employs editors and
16 writers who reside in Los Angeles, California. Moreover, Defendant has filed a
17 related lawsuit in the Central District of California, EntTech Media Group LLC v.
18 Okularity, Inc., et al., 2:20-cv-06298. Defendants are subject to the general and
19 specific personal jurisdiction of this Court because of their contacts with the State of
20 California.
21 PARTIES
22 3. Plaintiff Backgrid USA Inc. (“Backgrid”) is a California corporation
23 existing under the laws of California, with its principal place of business located in
24 Redondo Beach, California.
25 4. Plaintiff Splash News and Picture Agency, LLC (“Splash”) is a Nevada
26 limited liability company with its principal place of business in Los Angeles,
27 California.
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COMPLAINT
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1 5. Plaintiff Xposure Photo Agency, Inc. (“Xposure”) is a California

2 corporation with its principal place of business in Beverly Hills, California.
3 6. On information and belief, Defendant EntTech Media Group LLC
4 (“EntTech” or “Defendant”) is a Delaware limited liability company, with its
5 principal place of business in New York, New York.
6 7. The true names or capacities, whether individual, corporate or
7 otherwise, of the Defendants named herein as Does 1 through 10, inclusive, are
8 unknown to Plaintiffs, who therefore sue said Defendants by such fictitious names.
9 Plaintiffs will ask for leave of Court to amend this Complaint and insert the true
10 names and capacities of said Defendants when the same have been ascertained.
11 FACTS COMMON TO ALL COUNTS
12 The Photo Agencies and the Photographs that Frame this Dispute
13 8. Backgrid, Splash, and Xposure (the “Photo Agencies”) are
14 Hollywood’s largest celebrity-photograph agencies that regularly license celebrity-
15 driven content to top-tier outlets, such as TMZ, Entertainment Tonight, New York
16 Post, People Magazine, Huffington Post, the Daily Mail, as well as many television
17 stations, newspapers and other prominent media outlets throughout the world. Each
18 license has been granted for valuable consideration of up to hundreds of thousands
19 of dollars.
20 9. Among many other in-demand photographs, Backgrid, Splash and
21 Xposure respectively own the coveted celebrity photographs at issue in this
22 litigation, among many more (hereinafter the “Agency Photographs”). Backgrid
23 owns at least 19 timely registered photographs (“Backgrid Photographs”), Splash
24 owns at least 8 timely registered photographs (“Splash Photographs”), and Xposure
25 owns at least 1 timely registered photograph (“Xposure Photograph”) that have been
26 infringed by Defendant and are at issue in this litigation.
27 10. The Photo Agencies filed for copyright registration of their respective
28 Agency Photographs within 90 days of their first publication with the United States
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COMPLAINT
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1 Copyright Office. The Copyright registration information is attached as Exhibit A-1

2 (Backgrid), A-2 (Splash), and A-3 (Xposure).
3 Defendant and Its Willful Infringing Activity
4 11. Defendant EntTech touts itself as an “entertainment technology
5 ecosystem that leverages creative content, social amplification and proprietary data
6 to deliver shareable entertainment to a diverse group of audiences.” Among its
7 properties is Paper Magazine, a fashion and celebrity driven magazine that, on
8 information and belief, makes huge profits showcasing celebrity content. On
9 information and belief, EntTech uses and/or has used social media, such as
10 Instagram and Twitter, to promote its magazine and engage with potential readers.
11 12. Despite being a sophisticated publisher of content, EntTech is a repeat
12 and notorious infringer of copyright. EntTech has regularly relied on third party
13 content, including the content of the Photo Agencies, to attract traffic to its social
14 media accounts without license or permission from the Photo Agencies. EntTech has
15 been sued a number of times for copyright infringement, and, as such, is aware of
16 the basic strictures of copyright law and need to license the content from which it
17 handsomely profits. See e.g. Polaris Images Corporation v. EntTech Media Group,
18 LLC, 1:19-cv-08208-KPF (S.D.N.Y), Hirsch v. EntTech Media Group LLC, 1:19-cv-
19 07031-AT (S.D.N.Y), Schwartzwald v. EntTech Media Group, 1:19-cv-05505-JPO
20 (S.D.N.Y).
21 13. EntTech has reproduced, distributed, displayed, and created
22 unauthorized derivative works of the Agency Photographs on its Social Media
23 accounts without consent or license, as shown in Exhibit B-1 (Backgrid
24 Infringements), B-2 (Splash Infringements), and Exhibit B-3 (Xposure
25 Infringement).
26 14. EntTech has violated federal law by willfully infringing at least 28
27 timely registered photographs on, at least, EntTech’s social media accounts and/or
28 its Website.
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COMPLAINT
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1 15. EntTech has induced, caused, or materially contributed to the

2 reproduction, distribution and public display of the Agency Photographs, and
3 derivatives thereof, all the while knowing or having reason to know that the
4 infringing images on its website and/or social media accounts were being used
5 without permission, consent, or license.
6 16. On information and belief, at all times relevant to this dispute, EntTech
7 has owned, operated, and/or controlled its website and its social media accounts and
8 has financially benefited by displaying and reproducing the Agency Photographs
9 thereto. On information and belief, EntTech has driven significant traffic to its
10 website and social media accounts through the unauthorized use of the Agency
11 Photographs, and, thereby increased its revenues through the presence of the sought-
12 after and searched-for Agency Photographs that frame this dispute. Such traffic
13 translated into a substantial ill-gotten commercial advantage and increased brand
14 awareness as a direct consequence of the infringements.
15 The Photo Agencies Attempted to Minimize Their Harm by Issuing DMCA
16 Notices
17 17. Due to the damage caused by EntTech, the Photo Agencies acted to
18 minimize the ongoing harm caused by the infringements. Among other things, the
19 Photo Agencies caused certain Digital Millennium Copyright Act (“DMCA”)
20 Takedown Notices to be property issued to Instagram, the service provider hosting
21 the images uploaded by EntTech. See Exhibit C. Instagram took down the
22 infringements as required to keep its safe harbor protection under 17 U.S.C. § 512.
23 Instagram took the additional step of terminating or suspending EntTech’s Paper
24 Magazine account, presumably because Paper Magazine violated Instagram’s repeat
25 infringer policy, the enforcement of which is a threshold requirement under Section
26 512(i).
27 18. On or around July 15, 2020, Instagram reported that EntTech had filed
28 DMCA counter-notifications. The counter-notifications represented, under penalty
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COMPLAINT
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1 of perjury, that the declarant, EntTech’s lawyer, had “a good faith belief that the
2 material in question was removed or disabled as a result of mistake or
3 misidentification.” See Exhibit C.
4 19. The infringements were removed and disabled because they were
5 unlawful copies, not because of a mistake or misidentification. Tacitly
6 acknowledging that EntTech indeed engaged in infringement and wanting to avoid
7 the suspension of its Twitter account, EntTech took down the Photo Agency
8 infringements residing on its Twitter account after receiving notice from Plaintiffs
9 regarding the same.
10 20. But unhappy that its Instagram account had been flagged as a “repeat
11 infringer” by Instagram, EntTech filed suit against the Photo Agencies for among
12 other things, RICO and tortious interference with protective economic advantage. Of
13 course, all of the Photo Agencies’ actions were lawful and prescribed by the DMCA.
14 FIRST CLAIM FOR RELIEF
15 (Backgrid’s Claim for Copyright Infringement, 17 U.S.C. § 501)
16 21. Backgrid incorporates here by reference the allegations in paragraphs 1
17 through 20 above.
18 22. Backgrid is the owner of all rights, title, and interest in the copyrights of
19 the Backgrid Photographs that frame this dispute, which substantially consist of
20 material that is wholly original copyrightable subject matter under the laws of the
21 United States.
22 23. Backgrid, or the previous owner of the works that later assigned all
23 rights, title and interest to those works to Backgrid, filed for copyright registration of
24 the Backgrid Photographs with the United States Copyright Office within 90 days of
25 their first publication.
26 24. Defendants have directly, vicariously, contributorily and/or by
27 inducement willfully infringed Backgrid’s copyrights by reproducing, displaying,
28
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COMPLAINT
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1 distributing, and utilizing the Backgrid Photographs for purposes of trade in

2 violation of 17 U.S.C. §§ 501 et seq.
3 25. All of the Defendants’ acts are and were performed without permission,
4 license, or consent of Backgrid.
5 26. Backgrid has identified at least 19 instances of infringement by way of
6 unlawful reproduction and display of Backgrid’s photographs.
7 27. As a result of the acts of Defendants alleged herein, Backgrid has
8 suffered substantial economic damage.
9 28. EntTech has willfully infringed, and unless enjoined will continue to
10 infringe Backgrid’s copyrights by knowingly reproducing, displaying, distributing,
11 and utilizing Backgrid’s photographs by, among other things, virtue of EntTech’s
12 encouragement of the infringement and financial benefit it receives from
13 infringement of Backgrid’s copyrights.
14 29. Defendant’s wrongful acts have caused, and are causing, injury to
15 Backgrid, which injury cannot be accurately computed, Unless this Court restrains
16 Defendants from further commission of said acts, Backgrid will suffer irreparable
17 injury for which it is without an adequate remedy at law. Accordingly, Backgrid
18 seeks a declaration that Defendants are infringing Backgrid’s copyrights and an
19 order under 17 U.S.C. § 502 enjoining Defendant from any further infringement.
20 30. The above-documented infringements alone would entitle Backgrid to a
21 potential award of up to $ 2,850,000 in statutory damages for the at-least 19
22 infringed photographs, in addition to its attorney’s fees.
23 SECOND CLAIM FOR RELIEF
24 (Splash’s Claim for Copyright Infringement, 17 U.S.C. § 501)
25 31. Splash incorporates here by reference the allegations in paragraphs 1
26 through 20 above.
27 32. Splash is the owner of all rights, title, and interest in the copyrights of
28 the Splash Photographs that frame this dispute, which substantially consist of
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COMPLAINT
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1 material that is wholly original copyrightable subject matter under the laws of the
2 United States.
3 33. Splash filed for copyright registration of the Splash Photographs with
4 the United States Copyright Office within 90 days of their first publication.
5 34. Defendants have directly, vicariously, contributorily and/or by
6 inducement willfully infringed Splash’s copyrights by reproducing, displaying,
7 distributing, and utilizing the Splash Photographs for purposes of trade in violation
8 of 17 U.S.C. §§ 501 et seq.
9 35. All the Defendants’ acts are and were performed without permission,
10 license, or consent of Splash.
11 36. Splash has identified at least eight instances of infringement by way of
12 unlawful reproduction and display of Splash’s photographs.
13 37. As a result of the acts of Defendants alleged herein, Splash has suffered
14 substantial economic damage.
15 38. EntTech has willfully infringed, and unless enjoined will continue to
16 infringe, Splash’s copyrights by knowingly reproducing, displaying, distributing,
17 and utilizing Splash’s photographs by, among other things, virtue of EntTech’s
18 encouragement of the infringement and financial benefit it receives from
19 infringement of Splash’s copyrights.
20 39. Defendant’s wrongful acts have caused, and are causing, injury to
21 Splash, which cannot be accurately computed. Unless this Court restrains
22 Defendants from further commission of said acts, Splash will suffer irreparable
23 injury for which it is without an adequate remedy at law. Accordingly, Splash seeks
24 a declaration that Defendants are infringing Splash’s copyrights and an order under
25 17 U.S.C. § 502 enjoining Defendant from any further infringement.
26 40. The above-documented infringements alone would entitle Splash to a
27 potential award of up to $ 1,200,000 in statutory damages for the at-least 8 infringed
28 photographs, in addition to its attorney’s fees.
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COMPLAINT
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1 THIRD CLAIM FOR RELIEF

2 (Xposure’s Claim for Copyright Infringement, 17 U.S.C. § 501)
3 41. Xposure incorporates here by reference the allegations in paragraphs 1
4 through 20 above.
5 42. Xposure is the owner of all rights, title, and interest in the copyrights of
6 the Xposure Photograph that frames this dispute, which substantially consists of
7 material that is wholly original copyrightable subject matter under the laws of the
8 United States.
9 43. Xposure filed for copyright registration of the Xposure Photograph with
10 the United States Copyright Office within 90 days of its first publication.
11 44. Defendants have directly, vicariously, contributorily and/or by
12 inducement willfully infringed Xposure’s copyright by reproducing, displaying,
13 distributing, and utilizing the Xposure Photograph for purposes of trade in violation
14 of 17 U.S.C. §§ 501 et seq.
15 45. All the Defendants’ acts are and were performed without permission,
16 license, or consent of Xposure.
17 46. Xposure has identified at least one instance of infringement by way of
18 unlawful reproduction and display of Xposure’s photographs.
19 47. As a result of the acts of Defendants alleged herein, Xposure has
20 suffered substantial economic damage.
21 48. EntTech has willfully infringed, and unless enjoined will continue to
22 infringe, Xposure’s copyrights by knowingly reproducing, displaying, distributing,
23 and utilizing Xposure’s photographs by, among other things, virtue of EntTech’s
24 encouragement of the infringement and financial benefit it receives from the
25 infringement of Xposure’s copyrights.
26 49. Defendant’s wrongful acts have caused, and are causing, injury to
27 Xposure, which injury cannot be accurately computed. Unless this Court restrains
28 Defendants from further commission of said acts, Xposure will suffer irreparable
9
COMPLAINT
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1 injury for which it is without an adequate remedy at law. Accordingly, Xposure

2 seeks a declaration that Defendants are infringing Xposure’s copyrights and an order
3 under 17 U.S.C. § 502 enjoining Defendant from any further infringement.
4 50. The above-documented infringements alone would entitle Xposure to a
5 potential award of up to $ 150,000 in statutory damages for at-least 1 infringed
6 photograph, in addition to its attorney’s fees.
7 FOURTH CLAIM FOR RELIEF
8 (Declaratory Relief Under 17 U.S.C. § 512(g))
9 51. Plaintiffs incorporate here by reference the allegations in paragraphs 1
10 through 50 above.
11 52. An actual controversy exists as to whether EntTech is entitled to post
12 the Photo Agency Photographs on its Instagram account without Plaintiffs’ consent.
13 53. The Photo Agencies herein allege that EntTech is not entitled to
14 infringe its photographs and that EntTech’s Paper Magazine Instagram Account was
15 rightfully terminated by Instagram. As such, the Photo Agencies are entitled to an
16 order enjoining EntTech from infringing their photographs on Instagram and its
17 parent company, Facebook.
18 54. By submitting the DMCA counter-notifications, EntTech knowingly
19 and materially mispresented that the Agency Photographs were taken down as a
20 result of mistake or misidentification.
21 55. Defendants’ violation of 17 U.S.C. §§ 512(g), et al. has caused, and,
22 unless restrained by this Court, will continue to cause, irreparable injury to Plaintiffs
23 not fully compensable in monetary damages. Plaintiffs are entitled to a preliminary
24 and permanent injunction enjoining Defendants from further such violations.
25 FIFTH CLAIM FOR RELIEF
26 (Misrepresentation under 17 U.S.C. § 512(f))
27 56. Plaintiffs incorporate here by reference the allegations in paragraphs 1
28 through 55 above.
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COMPLAINT
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1 57. EntTech infringed the Agency Photographs.

2 58. In its counter-notifications to Instagram, EntTech knowingly and
3 materially misrepresented that the Agency Photographs were removed or disabled as
4 a result of a mistake or misidentification. See Exhibit C. On information and belief,
5 EntTech made this representation with actual knowledge that it was false and did so
6 because after making this false representation Instagram would be required to
7 reinstate EntTech’s Instagram account and its infringing posts if Plaintiffs did not
8 timely file suit.
9 59. As a direct and proximate result of EntTech’s false representation to
10 Instagram, Plaintiffs have been damaged, including for costs and attorneys’ fees, and
11 will be further damaged if the Photographs are reinstated. See 17 U.S.C. § 512(f)(2).
12 Plaintiffs are entitled to a judgment enjoining EntTech from infringing the Agency
13 Photographs, including on Instagram.
14 PRAYER FOR RELIEF
15 WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:
16 1. That Defendants, and their officers, agents, servants, employees, and
17 representatives, and all persons in active concert or participation with them, be
18 permanently enjoined from copying, reproducing, displaying, promoting,
19 advertising, distributing, or selling, or engaging in any other form of dealing or
20 transaction in, any and all the Agency Photographs, including on Instagram and
21 Facebook;
22 2. That pursuant to 17 U.S.C. § 504 (a)(1) & (b) an accounting be made of
23 all profits, income, receipts or other benefit derived by Defendants from the
24 unlawful reproduction, copying, display, promotion, distribution, or sale of products
25 and services, or other media, either now known or hereafter devised, that improperly
26 or unlawfully infringes upon Plaintiffs’ copyrights;
27 3. Pursuant to under 17 U.S.C. § 504 (a)(1) & (b) for actual damages and
28 disgorgement of all profits derived by Defendants from their acts of copyright
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COMPLAINT
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1 infringement, and for all damages suffered by Plaintiffs by reasons of Defendant’s

2 acts;
3 5. For statutory damages for copyright infringement, including willful
4 infringement, in accordance with 17 U.S.C. § 504(a)(2) & (c);
5 6. For damages incurred as a result of Defendant’s misrepresentation on
6 its counternotifications pursuant to 17 U.S.C. § 512(f);
7 6. For reasonable attorneys’ fees incurred herein pursuant to 17 U.S.C. §
8 505, 17 U.S.C. § 512(f);
9 7. For costs and interest pursuant to 17 U.S.C. § 504 (a)(1) & (b), 17
10 U.S.C. § 505, 17 U.S.C. § 512(f); and
11 8. For any such other and further relief as the Court may deem just and
12 appropriate.
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14 Dated: July 29, 2020 ONE LLP
15
By: /s/ Joanna Ardalan
16 Joanna Ardalan
17 Peter R. Afrasiabi

18 Attorneys for Plaintiff

19 Backgrid USA, Inc.; Splash News and
Picture Agency, LLC, Xposure Photo
20 Agency, Inc.
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COMPLAINT
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1 DEMAND FOR JURY TRIAL

2
Plaintiffs Backgrid USA, Inc., Splash News and Picture Agency, LLC,
3
Xposure Photo Agency, Inc., hereby demands trial by jury of all issues so triable
4
under the law.
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6 Dated: July 29, 2020 ONE LLP
7
By: /s/ Joanna Ardalan
8 Joanna Ardalan
9 Peter R. Afrasiabi
10 Attorneys for Plaintiff
11 Backgrid USA, Inc.; Splash News and
Picture Agency, LLC, Xposure Photo
12 Agency, Inc.
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COMPLAINT