Case5:14-cv-01256-HRL Document1 Filed03/18/14 Page1 of 6 1 2 3 4 5 6 Kent Meyer, SBN 117485 Michael Yee, SBN 258811 Meyer & Yee, LLP 950 Reserve Drive, Suite 110 Roseville, CA 95678 Telephone: (916) 599-7297 Facsimile: (916) 471-0160 Attorneys for Plaintiff 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 ALARA MILLS, Case No. 12 Plaintiff, 13 14 15 16 COMPLAINT FOR COPYRIGHT INFRINGEMENT vs. Date: Time: Dept: JOSHUA DUCK, Defendant. 17 18 19 20 21 Plaintiff Alara Mills, by and through her attorneys, alleges as follows: PARTIES 1. Plaintiff, Alara Mills (“Mills”), is an individual domiciled in Santa Monica, California. 22 23 2. Upon information and belief, Defendant, Joshua Duck (“Duck”), is an individual 24 domiciled in San Carlos, California, and doing business in Menlo Park, California. Duck is 25 domiciled in the Northern District of California. 26 27 28 1 _______________________________________________________________________________________________ COMPLAINT FOR COPYRIGHT INFRINGEMENT CASE NO. Case5:14-cv-01256-HRL Document1 Filed03/18/14 Page2 of 6 JURISDICTION AND VENUE 1 2 3. This is an action for copyright infringement arising under the copyright laws of the 3 United States, Title 17, United States Code. Jurisdiction as to these claims is conferred on this 4 Court by 28 U.S.C. §§ 1331 and 1338(a). 5 4. Venue is proper in the Northern District of California under 28 U.S.C. §§ 1391 and 6 7 8 9 10 11 1400(a). 5. This Court has personal jurisdiction over Duck. Duck is domiciled within the State of California and within this judicial district. 6. Duck, directly or through intermediaries, makes, distributes, offers for sale, and advertises his products in the United States, the State of California, and the Northern District of 12 California via the internet. 13 14 15 BACKGROUND 7. Alara Mills (“Mills”) is an educational product designer and creator of the HTML Table 16 of Elements (also known as HTML5 Elements and Attributes Table and HTML5 Elements 17 Table™). Mills was a student at Venice Skills Center in Venice, California when she designed 18 the information graphic “HTML Table of Elements.” On December 25, 2009, Mills, a United 19 20 States citizen, created the graphic, sketching it out on paper, thus fixing it in a tangible medium 21 of expression. The graphic is an original work of authorship that may be copyrighted under 22 United States law. A copy of the original December 25, 2009 sketches are attached as Exhibit A. 23 The HTML Table of Elements is an informational graphic that brings revolutionary simplicity to 24 HTML5’s elements, global attributes, and event handlers overseen by the International World 25 Wide Web Consortium (W3.org). It is designed to help web developers discover, recall, and 26 27 28 compare HTML5’s 200 plus elements and attributes in an all-in-one view. The graphic uniquely 2 _______________________________________________________________________________________________ COMPLAINT FOR COPYRIGHT INFRINGEMENT CASE NO. Case5:14-cv-01256-HRL Document1 Filed03/18/14 Page3 of 6 1 groups the elements and attributes of HTML into 12 webpage function categories: Basic, Form, 2 Image, Interactive, Link, Media, Meta Info, Programming, Style, Table, and Text-Level. The 3 HTML Table of Elements is organized in the basic form of Dmitri Mendeleev’s periodic table of 4 elements. 5 8. Mills owns a copyright in the 2-D artwork titled “HTML Table of Elements.” A true and 6 7 correct copy of the HTML Table of Elements is attached hereto as Exhibit B. Mills’ copyright is 8 registered with the United States Copyright Office with an effective date of registration of 9 January 27, 2010 and registration number VAu 1-014-116. A true and correct copy of the 10 11 Certificate of Registration is attached hereto as Exhibit C. 9. Mills emailed a copy of her prospectus to Kirk Kazanjian on July 12, 2010, which 12 contained a derivative work of the HTML Table of Elements in order to receive initial feedback 13 14 from him before pursuing book publishers. Kirk Kazanjian is a literary agent/former co-worker 15 of Mills. Mills sells quick reference guides, wall-reference posters, and table posters displaying 16 the HTML5 Elements Table™ graphic. A true and correct copy of the graphic submitted to Kirk 17 Kazanjian in Mills’ email is attached hereto as Exhibit D. 18 10. In August 2010, after Mills’ copyright was issued, Duck published the “Periodic Table of 19 20 21 the Elements.” 11. Mills discovered Duck’s use of a HTML5 elements graphic on his website hosted at 22 http://joshduck.com/periodictable.html on July 25, 2011. Duck’s “Periodic Table of Elements” 23 compiles the 107 elements currently in the HTML5 working draft. Duck’s table is also 24 organized in the same form as Dmitri Mendeleev’s periodic table of elements, with similar color 25 schemes, text, and organization. A true and correct copy of Duck’s “Periodic Table of Elements” 26 27 28 is attached hereto as Exhibit E. 3 _______________________________________________________________________________________________ COMPLAINT FOR COPYRIGHT INFRINGEMENT CASE NO. Case5:14-cv-01256-HRL Document1 Filed03/18/14 Page4 of 6 12. In December 2011 Mills released a poster of her HTML5 Elements Table chart for sale 1 2 on ArtistRising.com, and in October 2013 Mills discovered that Duck is selling a poster version 3 of his chart on www.Zazzle.com. 4 5 13. On October 29, 2013, Mills sent Duck a cease and desist letter attached hereto as Exhibit F. 6 7 8 9 10 11 14. On November 27, 2013 Mills became aware that Duck has sold one or more copies of his table. 15. On information and belief, Duck has been aware of Mills’ HTML5 Elements Table™ since July 2010, when Mills emailed a copy of the graphic to Kirk Kazajian. 16. On information and belief, Duck had access to Mills’ HTML5 Elements Table™. 12 17. On information and belief, Duck has purposefully, actively, and voluntarily made an 13 14 unauthorized derivative work based on Mills’ HTML5 Elements Table™ and displayed it and 15 distributed it to consumers. Duck has thus committed acts of copyright infringement within the 16 State of California and, particularly, within the Northern District of California. By purposefully 17 and voluntarily distributing one or more of his infringing products, Duck has injured Mills and is 18 thus liable to Mills for infringement of the copyright at issue in this litigation pursuant to 17 19 20 U.S.C. § 501. 21 Count I 22 (Copyright Infringement) 23 24 25 18. Alara Mills hereby restates and realleges the allegations set forth in paragraphs 1 through 16 above and incorporates them by reference. 19. The HTML5 Elements Table™ contains a substantial amount of original material, 26 27 28 including, but not limited to, Mills’ original selection and arrangement of the HTML5 elements 4 _______________________________________________________________________________________________ COMPLAINT FOR COPYRIGHT INFRINGEMENT CASE NO. Case5:14-cv-01256-HRL Document1 Filed03/18/14 Page5 of 6 1 and the 2-D graphic, that is copyrightable subject matter under the Copyright Act, 17 U.S.C. §§ 2 102, 103. The original selection and arrangement involved time consuming creative choices. 3 20. Without consent, authorization, approval, or license, Duck knowingly, willingly, and 4 5 unlawfully copied, prepared, published and distributed derivative works of Mills’ copyrighted work. Duck’s “Periodic Table of the Elements” infringes Mills’ copyrights in the HTML5 6 7 Elements Table™ and Duck is not licensed to do so. 8 21. On information and belief, Duck’s infringement is and has been knowing and willful. 9 22. By this unlawful copying, use, and distribution, Duck has violated Mills’ exclusive rights 10 11 under 17 U.S.C. § 106. 23. Duck has realized unjust profits, gains, and advantages as a proximate result of its 12 infringement and has failed to cite appropriate credit or acknowledgement to Mills. 13 14 15 16 17 18 24. Duck will continue to realize unjust profits, gains, and advantages as a proximate result of its infringement as long as such infringement is permitted to continue. 25. Mills is entitled to an injunction restraining Duck from engaging in any further such acts in violation of the United States copyright laws. Unless Duck is enjoined and prohibited from infringing Mills’ copyright, and unless all infringing products and advertising materials are 19 20 21 seized, Duck will continue to intentionally infringe and induce infringement of Mills’ registered copyrights. 22 26. As a direct and proximate result of Duck’s direct willful copyright infringement, Mills 23 has suffered and will continue to suffer, monetary loss to her business, reputation, and goodwill. 24 Mills is entitled to recover from Duck, in amounts to be determined at trial, the damages 25 sustained and will sustain, and any gains, profits, and advantages obtained by Duck as a result of 26 27 28 Duck’s acts of infringement and Duck’s use and publication of the copied materials. 5 _______________________________________________________________________________________________ COMPLAINT FOR COPYRIGHT INFRINGEMENT CASE NO. Case5:14-cv-01256-HRL Document1 Filed03/18/14 Page6 of 6 PRAYER FOR RELIEF 1 2 3 4 5 WHEREFORE, Alara Mills prays for judgment as follows: 1. An entry of judgment holding Duck liable for infringement of the copyright at issue in this litigation; 2. An order permanently enjoining Duck, his officers, agents, servants, employees, 6 7 attorneys and affiliated companies, his assigns and successors in interest, and those persons in 8 active concert or participation with it, from continued acts of infringement of the copyright at 9 issue in this litigation; 10 11 3. An order that all copies made or used in violation of Mills’ copyright, and all means by which such copies may be reproduced, be impounded and destroyed or otherwise reasonably 12 disposed of; 13 14 4. An order awarded Mills statutory damages and damages according to proof resulting 15 from Duck’s infringement of the copyright at issue in this litigation, together with prejudgment 16 and post-judgment interest; 17 18 5. An order awarding Mills her costs and attorney’s fees under 17 U.S.C. § 505; and 6. Any and all other legal and equitable relief as may be available under law and which the 19 20 court may deem proper. 21 22 23 24 Executed on March 18, 2014, at Roseville, California. MEYER & YEE, LLP 25 26 27 28 By____/s/ Michael Yee____________________ MICHAEL YEE Attorney for Plaintiff 6 _______________________________________________________________________________________________ COMPLAINT FOR COPYRIGHT INFRINGEMENT CASE NO.