moore v. horrorhound - second amended complaint.pdf

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

Ian Mattlock Moore §

§

Plaintiff, § No. 3:14-cv-00836-JRS

§

v. §

§

HorrorHound Ltd, LLC §

§ JURY TRIAL DEMANDED

Defendant. §

§

§

PLAINTIFF’S SECOND AMENDED ORIGINAL COMPLAINT

COMES NOW, Plaintiff Ian Mattlock Moore (“Plaintiff”), by counsel, pursuant to

Federal Rules of Civil Procedure 15(a)(2) and the Court’s Order Granting Leave to Amend, and

files Plaintiff’s Second Amended Original Complaint against Defendant HorrorHound Ltd, LLC

(“Defendant”), alleging as follows:

PARTIES

1. Plaintiff, Ian Mattlock Moore is a citizen and resident of Maidens, Virginia. He is

a well-known expert in the field of horror films.

2. Upon information and belief, Defendant HorrorHound Ltd, LLC, is an Ohio

limited liability company with a business address of 1197 Muirwood Lane, Batavia, Ohio 45103.

Defendant publishes a magazine entitled HorrorHound marketed to fans of horror culture,

including movies, television programs, toys and collectible items.

Case 3:14-cv-00836-JRS Document 26 Filed 08/27/15 of 24 PageID# 321

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JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction over trademark infringement arising

under the Lanham Act pursuant to 15 U.S.C. § 1125(a) and 28 U.S.C. §§ 1331, 1338(a). This

Court has subject matter jurisdiction over copyright infringement arising under the Copyright

Act of the United States pursuant to 17 U.S.C. §§ 106, 501 and 28 U.S.C. § 1338(a). This Court

has subject matter jurisdiction over the declaratory judgment action pursuant to 28 U.S.C. §

2201. This Court has supplemental jurisdiction over Plaintiff’s related state and common law

claims pursuant to 28 U.S.C. §§ 1138 and 1367(a).

4. This Court has personal jurisdiction over Defendant because, on information and

belief, Defendant has distributed or sold infringing merchandise within this District, has

distributed or sold infringing merchandise to various companies with the knowledge that those

companies sell merchandise in retail stores in Virginia, has engaged in acts or omissions outside

of Virginia causing injury within Virginia, has manufactured or distributed products in Virginia

causing injury within Virginia, has distributed products used or consumed within Virginia in the

ordinary course of trade, or has otherwise made or established contacts with Virginia sufficient

to permit the exercise of personal jurisdiction.

5. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of

the events or omissions giving rise to Plaintiff’s claims occurred in this District.

6. In accordance with Local Civil Rule 3, filing in the Richmond Division is proper

for the same reasons venue in the Eastern District is proper, namely that a substantial part of the

events or omissions giving rise to Plaintiff’s claims occurred in this Division.


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COMMON FACTS

7. Plaintiff’s reputation as an expert in the history, and collectability of, horror films

precedes him. He is well-known within the horror culture community as the primary catalyst for

the “craze” of collecting Video Home System (“VHS”) horror films.

8. In 2008, Plaintiff conceived, developed, wrote, designed, and was the creative

force behind a series of articles entitled “Video Invasion,TM

” which were published in

Defendant’s HorrorHound magazine.

9. The series focused on the rise of the Video Home System (VHS) in America and

chronicled the many producers of horror-themed movies. Plaintiff’s series was featured in

Defendant’s HorrorHound magazine from Issue 12, published in July, 2008, through Issue 39,

published in January, 2013.

10. In total, Plaintiff was responsible for twenty-six articles for the VIDEO

INVASIONTM

series. In addition, Plaintiff authored numerous other articles for Defendant,

including an article entitled “The Prowler,” published in Issue 22, and an article entitled “Tech

Specs European Invasion,” published in Issue 25.

11. Each VIDEO INVASIONTM

article that Plaintiff penned combined Plaintiff’s text

with his layout and design, which was unique to the VIDEO INVASIONTM

series. This

combination was intended to, and did, constitute a single unitary whole in the form of a final

published article.

12. Fans of HorrorHound magazine have especially loved the VIDEO INVASIONTM

series. In 2009, Plaintiff was nominated for a Rondo Hatton Classic Horror Award and was

named Runner-Up for certain of VIDEO INVASIONTM

articles. Later, in 2013, Plaintiff was

interviewed for the documentary “Adjust Your Tracking” regarding the VHS culture. One


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commentator on the documentary stated that Plaintiff was “well-known as the HorrorHound

columnist that popularized this [VHS collecting] craze.”

13. On information and belief, sales of Defendant’s HorrorHound magazine

increased substantially in part due to the inclusion of the successful VIDEO INVASIONTM

series

in the magazine.

14. Despite the increased success of Defendant, Plaintiff received only sporadic and

unpredictable payments for his articles. These sporadic payments were generally in amounts

between fifty to one-hundred dollars ($50.00 to $100.00) per article. Plaintiff often had to

demand these paltry payments before Defendant would forward a check or transfer the funds via

the online service PayPal.

15. In addition, Plaintiff often purchased goods and services on behalf of Defendant,

with the promise that Plaintiff would be reimbursed. Defendant, however, never paid Plaintiff for

these expenditures.

16. On information and belief, Defendant sells its magazines for $6.99 (six dollars

and ninety-nine cents) each and produces six (6) issues per year. On information and belief,

Defendant produces no fewer than thirty thousand (30,000) copies of each issue, and has

produced up to seventy-five thousand (75,000) copies of some issues. Thus, on information and

belief, Defendant’s sales per year range between $1,260,000 and $3,150,000.

17. HorrorHound magazine’s popularity is evidenced by the more than thirteen

thousand (13,000) likes the magazine’s Facebook page has received and the more than twenty

thousand (20,000) individuals that follow HorrorHound on Twitter. On information and belief,

Defendant sells its magazine internationally through its website and retail outlets, including big-


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box chains such as Barnes & Noble, Hastings and Books A Million as well as local comic book

stores.

18. In early 2013, Plaintiff and Defendant ended their working relationship. Plaintiff

and Defendant agreed at that time that the VIDEO INVASIONTM

series would no longer be

published in Defendant’s magazine. In addition, Plaintiff’s termination of his relationship with

Defendant constituted a termination of Plaintiff’s consent for Defendant to publish Plaintiff’s

name in the HorrorHound magazine and to use Plaintiff’s VIDEO INVASIONTM

trademark.

19. Despite Plaintiff’s decision to discontinue writing for Defendant, Defendant

continued to list Plaintiff as a writer in Issues 40, 41, 42, 43, 44 and 45 (an entire year’s worth of

issues) of Defendant’s magazine. On information and belief, Defendant included Plaintiff as a

contributing writer in Defendant’s magazine in an effort to appeal to Plaintiff’s fan base and

drive sales of Defendant’s magazine.

20. In Issue 41, Defendant announced the return of the VIDEO INVASIONTM

series,

to be included in the next issue, although Plaintiff was no longer affiliated with the magazine.

Defendant never approached Plaintiff requesting permission to use Plaintiff’s VIDEO

INVASIONTM

Mark or to create a derivative of his copyrighted work.

21. In Issue 46, published in March, 2014, Defendant printed an article entitled “VHS

Invasion.” This article focused on the same subject matter as Plaintiff’s VIDEO INVASIONTM

series and constituted a derivative work of each of the articles in the VIDEO INVASIONTM

series.

22. Furthermore, the “VHS Invasion” article’s “look and feel” was almost identical to

the “look and feel” of Plaintiff’s VIDEO INVASIONTM

series.

23. Defendant published another VHS Invasion article in Issue 49.


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24. In Issue 50, Defendant published a “HorrorHound Magazine Index.” This index

listed all of Plaintiff’s previously published VIDEO INVASIONTM

articles as “VHS Invasion”

articles, assuming credit for all of the VIDEO INVASIONTM

articles and attempting to re-write

history by removing references to the VIDEO INVASIONTM

series. Despite this attempt to re-

write history, Defendant foiled part of the plan itself by including in the index the cover of Issue

22, where the VIDEO INVASIONTM

series is promoted prominently on the front and center

portion of the cover, a copy of which is attached hereto as Exhibit 1.

25. Defendant again published a VHS Invasion article in Issue 50.

26. Each of the VHS Invasion articles constituted derivative works of Plaintiff’s

copyright in the VIDEO INVASIONTM

articles.

27. Throughout 2013 and 2014, on information and belief, Defendant continued to

inform advertisers that upcoming issues would contain the VIDEO INVASIONTM

series. Due to

Defendant’s actions, these advertisers promoted HorrorHound magazine by, in part, advertising

the inclusion of the VIDEO INVASIONTM

series.

28. Furthermore, as of April 20, 2015, Defendant continued to advertise and sell

issues of the HorrorHound magazine that included infringing content, including Issue 50 and

others, on Defendant’s website, well after Defendant was formally notified of Plaintiff’s

complaint.1

29. The VIDEO INVASIONTM

articles required a significant amount of Plaintiff’s

time, which included writing the text of the articles, finding, selecting, and arranging pictures of

VHS covers to correspond to the VHS tapes Plaintiff discussed in his articles, and otherwise

creating a distinctive layout for the series.

1 See www.horrorhound.com/store/index, last visited on April 20, 2015.


http://www.horrorhound.com/store/index

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30. Prior to the first VIDEO INVASIONTM

article, Plaintiff conceptualized the layout

and design of the series. Plaintiff believed the series should be reminiscent of a movie store with

a museum-like quality. Plaintiff provided Defendant with a hand-drawn depiction of the layout

of the article and otherwise instructed Defendant in detail on Plaintiff’s vision for the design of

the article.

31. Similarly, with subsequent VIDEO INVASIONTM

articles, Plaintiff instructed

Defendant as to specific details pertaining to every aspect of the articles. Plaintiff spent a

significant amount of time discussing these VIDEO INVASIONTM

articles with Defendant,

wherein he detailed with specificity the layout and design of the VIDEO INVASIONTM

articles,

including, but not limited to, the selection and arrangement of the VHS cover art and the

selection and arrangement of any movie posters and promotions. In addition, Plaintiff spent a

significant amount of time answering Defendant’s questions regarding aspects of the layout and

design. On information and belief, Defendant inputted Plaintiff’s layout and design into a

computer software program.

32. In addition to authoring the layout and design of the VIDEO INVASIONTM

articles, Plaintiff twice updated the header for the VIDEO INVASIONTM

articles, with the

second iteration of the header appearing first in Issue 20, and the third iteration appearing first in

Issue 34. With each header, Plaintiff communicated to Defendant the exact changes

necessary to realize his vision, and those changes were implemented under Plaintiff’s authority.

Moreover, in addition to Plaintiff’s extensive communication, Plaintiff provided a drawing of the

main component of the second iteration of the header to Defendant.

33. Plaintiff created the layout and design of the VIDEO INVASIONTM

series by

dictating with specificity the design elements to Defendant, including, but not limited to: (i) a


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band of black roughly one inch wide, running horizontally from left to right across the top of the

left page and continuing slightly across the fold onto the opposite page where the black band is

composed of images of reels of VHS tapes laid end to end. The band features three additional

text and/or design elements: first, the text “THE VIDEO INVASION REMEMBERING THE

VHS BOOM!”, second, a colorful central featuring text consisting of the stylized Volume Title

and design, and third, text comprised of the Volume Number, Volume Title, and Plaintiff Matt

Moore’s name; (ii) two columns of text on both pages bifurcated by a central colorful video

cover; (iii) a band of colorful VHS covers creating a band approximately two inches wide across

all or substantially all of the bottom of both pages of the articles, and across the top of the second

page of the article; and (iv) the use of consistent font in white on black for the Series and

Volume names displayed in the black band.

34. Plaintiff thus authored the layout and design of each of the VIDEO INVASIONTM

articles, as Plaintiff communicated the exact design to Defendant and the work was fixed under

the authority of Plaintiff.

35. Defendant’s involvement with the VIDEO INVASIONTM

series amounted to

editing of Plaintiff’s text in the articles and transcribing Plaintiff’s exact instructions regarding

the layout and design of the series into a computer software program.

36. In each VIDEO INVASIONTM

article that Plaintiff penned, Plaintiff authored the

text, layout, and design of each VIDEO INVASIONTM

article, Plaintiff is the sole owner of all

intellectual property rights in the same.

37. As the sole owner, Plaintiff retains all rights to create works that derive from the

VIDEO INVASIONTM

articles.


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38. Plaintiff never signed a work for hire agreement, was never Defendant’s

employee, nor did he assign his intellectual property rights in the articles, the VIDEO

INVASIONTM

Mark, or his name to Defendant at any time. In addition, any implied license that

Defendant had to publish Plaintiff’s copyrighted work was terminated when Plaintiff ended his

relationship with Defendant.

39. Plaintiff currently has a federal copyright application pending for the VIDEO

INVASIONTM

series of articles covering Issues 34 through 39. Per the United States Copyright

Office’s rules, Plaintiff properly filed a paper application with the Copyright Office and paid the

required fees. See Exhibit 2. Plaintiff notes that “a complaint alleging that the copyright holder

properly applied for registration with the Copyright Office is sufficient to satisfy the

precondition to an infringement action.” Phoenix Renovation Corp. v. Rodriguez, 403 F. Supp.

2d 510, 515 (E.D. Va. 2005).

40. Defendant violated Plaintiff’s copyright when it created the infringing “VHS

Invasion” series. Defendant’s VHS Invasion articles utilized the same look and feel as Plaintiff’s

VIDEO INVASIONTM

series and were derived from Plaintiff’s VIDEO INVASIONTM

series.

41. In the alternative, even if Defendant’s contributions to each VIDEO

INVASIONTM

article go beyond editing and transcribing, Plaintiff is, at the very least, a joint

author in each VIDEO INVASIONTM

article that he penned.

42. For each of the VIDEO INVASIONTM

articles that Plaintiff penned, Plaintiff

authored the independently-copyrightable text. Plaintiff also provided independently-

copyrightable and/or substantial contributions to the layout and design of each VIDEO

INVASIONTM

article, including, but not limited to, contributions to the article headers, the


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selection and arrangement of VHS cover art, the selection and arrangement of poster art, movie

stills and other aspects of the design.

43. Furthermore, Plaintiff was responsible for giving final approval of the VIDEO

INVASIONTM

articles.

44. With each published VIDEO INVASIONTM

article, Plaintiff and Defendant

intended to create a unitary whole work comprising all of the components put forth by the

parties.

45. As a joint author, Plaintiff is entitled to his pro rata share of the profits in both the

VIDEO INVASIONTM

series and the derivative VHS Invasion articles, a right that Defendant

has thus far denied Plaintiff.

46. Additionally, Plaintiff is the owner of the mark VIDEO INVASIONTM

, which

Plaintiff uses to identify his series of articles. As a result of Plaintiff’s continuous use of the

VIDEO INVASIONTM

Mark to identify Plaintiff’s series, Plaintiff owns common law rights to

the VIDEO INVASIONTM

Mark.

47. Defendant infringed Plaintiff’s trademark rights in the VIDEO INVASIONTM

mark when it continued to use Plaintiff’s trademark and then began using the confusingly similar

VHS INVASION trademark.

48. Defendant’s use of the mark VHS INVASION to identify its new articles was

intended to cause and has caused actual confusion in the marketplace. For example, on March

13, 2014, a fan of Plaintiff’s VIDEO INVASIONTM

series posted in a forum: “Video Invasion is

back in HorrorHound this month? Nice.” This statement confused Defendant’s VHS Invasion

article, published in the March, 2014 issue of Defendant’s magazine, with Plaintiff’s VIDEO

INVASIONTM

series.


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49. In addition, Defendant’s listing of the VIDEO INVASIONTM

articles as “VHS

Invasion” articles in the “HorrorHound Magazine Index” published in Issue 50 significantly

enhances the likelihood of confusion between Plaintiff’s VIDEO INVASIONTM

series and “VHS

Invasion,” as Defendant has willfully led consumers to believe that all of Plaintiff’s VIDEO

INVASIONTM

articles are actually “VHS Invasion” articles.

50. Defendant’s use of the mark VHS Invasion infringes Plaintiff’s rights in the

VIDEO INVASIONTM

mark as it causes, and was intended to cause, confusion in the

marketplace as to the source of the articles.

51. Plaintiff filed an application to federally register the VIDEO INVASIONTM

mark

on December 12, 2014 (U.S. Serial Number 86480154), a copy of the United States Patent and

Trademark Office filing receipt for this mark is shown as Exhibit 3.

52. Plaintiff has also registered the mark VIDEO INVASIONTM

with the

Commonwealth of Virginia, Virginia Trademark Registration Number 11110. See Exhibit 4.

COUNT I

UNFAIR COMPETITION UNDER THE LANHAM ACT

(As to VIDEO INVASIONTM

Mark)

53. Plaintiff repeats and re-alleges each of the allegations above as if fully set forth

herein.

54. Defendant’s unauthorized use of Plaintiff’s VIDEO INVASIONTM

is likely to and

has caused actual confusion among the consuming public as to the origin, sponsorship, or

approval of Defendant’s goods.

55. As a result of Defendant’s unauthorized use of Plaintiff’s VIDEO INVASIONTM

Mark in connection with articles in the field of collecting horror movies, the consuming public

has believed, and is likely to continue to believe, that Defendant’s articles have been created or


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approved by Plaintiff. Such use falsely represents Defendant as being legitimately affiliated,

connected, or associated with or authorized by Plaintiff. Defendant’s use further places

Plaintiff’s valuable and hard-earned reputation and goodwill in the hands of Defendant in

violation of 15 U.S.C. § 1125(a).

56. Furthermore, Defendant’s unauthorized use of the VHS Invasion mark, a

confusingly similar imitation of Plaintiff’s VIDEO INVASIONTM

Mark, is likely to cause

confusion, to cause mistake, or to deceive the consuming public as to the origin, sponsorship, or

approval of Defendant’s goods, and in fact has caused confusion, mistake, and has deceived the

consuming public as to the origin, sponsorship, or approval of Defendant’s goods.

57. As a result of Defendant’s unauthorized use of a confusingly similar imitation of

Plaintiff’s Mark in connection with articles in the field of collecting horror movies, the

consuming public has believed, and is likely to continue to believe, that Defendant’s articles

have been created or approved by Plaintiff. Such use falsely represents Defendant as being

legitimately affiliated, connected, or associated with or authorized by Plaintiff. Defendant’s use

further places Plaintiff’s valuable and hard-earned reputation and goodwill in the hands of

Defendant in violation of 15 U.S.C. § 1125(a).

58. On information and belief, in using Plaintiff’s VIDEO INVASIONTM

Mark,

Defendant knowingly and intentionally caused actual confusion among the relevant consuming

public as to the source of Defendant’s VHS Invasion articles.

59. Defendant’s conduct is causing immediate and irreparable injury to Plaintiff, his

goodwill and reputation, and will continue to damage Plaintiff and deceive the public unless

enjoined by this Court pursuant to 15 U.S.C. § 1116.


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60. In addition to injunctive relief, Plaintiff is entitled to recover his actual damages,

costs, reasonable attorneys’ fees, and Defendant’s profits under 15 U.S.C. § 1117 in an amount

to be determined.

COUNT II

STATE TRADEMARK INFRINGEMENT

(As to VIDEO INVASIONTM

Mark)


herein.

62. Defendant’s unauthorized use of Plaintiff’s VIDEO INVASIONTM

Mark is likely

to cause, and in fact has caused, consumer confusion, mistake, or deception as to the source or

origin of Defendant’s goods in violation of Virginia Code Ann. § 59.1-92.12.

63. Furthermore, Defendant’s unauthorized use of the VHS INVASION Mark, a

confusingly similar imitation of Plaintiff’s VIDEO INVASIONTM

Mark, is likely to cause, and in

fact has caused, consumer confusion, mistake, or deception as to the source or origin of

Defendant’s goods in violation of Virginia Code Ann. § 59.1-92.12.

64. In using Plaintiff’s Mark, Defendant knowingly and intentionally caused actual

confusion among the relevant consuming public as to the source of Defendant’s VHS Invasion

articles.

65. As a result of Defendant’s intentional actions, Plaintiff is entitled to recover his

actual damages, costs, reasonable attorneys’ fees, and Defendant’s profits under Virginia Code

Ann. § 59.1-92.12 in an amount to be determined.


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COUNT III

COMMON LAW UNFAIR COMPETITION/MISAPPROPRIATION

(As to the VIDEO INVASIONTM

Mark)


herein.

67. Defendant’s acts constitute common law unfair competition and have created and

will continue to create a likelihood of confusion by using a confusingly similar imitation of

Plaintiff’s VIDEO INVASIONTM

Mark.

68. On information and belief, Defendant acted with full knowledge of Plaintiff’s use

of, and common law rights to, the VIDEO INVASIONTM

Mark and acted without regard to the

likelihood of confusion of the public created by Defendant’s activities.

69. Such confusion has actually occurred, and is likely to continue to occur, due to

Defendant’s actions.

70. On information and belief, Defendant’s actions demonstrate an intentional and

willful intent to trade on the goodwill and reputation associated with Plaintiff’s Mark to the great

and irreparable injury of Plaintiff.

71. As a result of Defendant’s acts, Plaintiff has been damaged in an amount not as

yet determined or ascertainable. At a minimum, however, Plaintiff is entitled to injunctive relief,

to an accounting of Defendant’s profits, to damages, and to costs.

COUNT IV

FEDERAL COPYRIGHT INFRINGEMENT


herein.


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73. Plaintiff is, and all relevant times has been, the copyright owner of exclusive

rights with respect to every VIDEO INVASIONTM

article that Plaintiff penned and all artistic

elements incorporated by Plaintiff into each article.

74. As copyright owner of exclusive rights, Plaintiff is solely entitled to reproduce,

distribute, prepare derivative works, and/or display Plaintiff’s copyrighted work.

75. Defendant’s publication of each article entitled “VHS Invasion” infringed

Plaintiff’s exclusive rights by preparing a derivative work without Plaintiff’s consent or

agreement.

76. Although Defendant could have adopted any one of thousands of article layouts

and elements, Defendant’s VHS Invasion series copied a substantial part of Plaintiff’s work by

including, but not limited to, the following elements employed by Plaintiff: (i) a band of black

roughly one inch wide and a light gray horizontal line near the bottom of such band, in each case,

running horizontally from left to right across the top of the left page; (ii) layout of text on either

side of the series name; (iii) a band of colorful VHS covers creating a band approximately two

inches wide across all or substantially all of the bottom of both pages of the articles, and across

the top of the second page of the article; and (iv) the use of consistent font in white on black for

the Series and Volume names displayed in the black band.

77. On information and belief, Defendant’s acts were willful and intentional and with

disregard of and indifference to the rights of Plaintiff.

78. Defendant’s conduct is causing immediate and irreparable injury to Plaintiff, his

goodwill and reputation, and will continue to damage Plaintiff and deceive the public unless

enjoined by this Court pursuant 17 U.S.C. § 502.


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79. As a result of Defendant’s acts, Plaintiff has been damaged in an amount not as

yet determined or ascertainable. At a minimum, however, Plaintiff is entitled to injunctive relief,

to an accounting of Defendant’s profits, to damages, and to costs, including reasonable attorneys’

fees.

COUNT V

DECLARATORY JUDGMENT

(In the Alternative)


herein.

81. Each of the facts set forth in Counts V, VI, and VII are pled in the alternative.

82. If Plaintiff is not the sole owner of each VIDEO INVASIONTM

article that he

penned, then, in the alternative, Plaintiff is, at the very least, a joint author in the same.

83. Plaintiff owns the independently-copyrightable text for each VIDEO

INVASIONTM


84. Plaintiff made independently-copyrightable and/or substantial contributions to the

layout and design of each VIDEO INVASIONTM

article and to other components of the unitary

work.

85. Plaintiff was responsible for approving the final version of each VIDEO

INVASIONTM

article.

86. Defendant also contributed to each VIDEO INVASIONTM

article, through, on

information and belief, the use of a computer software program.

87. With each VIDEO INVASIONTM

article, Plaintiff and Defendant fully expected

and intended for their contributions to be merged into inseparable or interdependent parts of a

single unitary whole comprising the finalized version of each VIDEO INVASIONTM

article.


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88. Defendant, however, now claims that its contributions rise to the level of entitling

it to sole ownership in the copyright in each VIDEO INVASIONTM

article that Plaintiff penned.

89. Therefore, an actual case or controversy exists sufficient for this Court to declare

the rights and remedies of the parties in that there is a dispute between the parties concerning the

extent of rights each party enjoys in each of the VIDEO INVASIONTM

articles.

90. Pursuant to 28 U.S.C. § 2201 Plaintiff seeks a judgment declaring that Plaintiff is

an author and owner of the copyright in each VIDEO INVASIONTM


COUNT VI

ACCOUNTING


herein.

92. Plaintiff, as a joint owner in the copyright, is entitled to his pro rata share of the

profits that Defendant enjoyed from each VIDEO INVASIONTM

article that he penned and/or

the VIDEO INVASION TM

series as a whole.

93. Plaintiff is further entitled to his pro rata share of the profits that Defendant

enjoyed from the “VHS Invasion” articles, which were derived from the VIDEO INVASIONTM

series.

94. By commercially exploiting both the VIDEO INVASIONTM

series and the VHS

Invasion articles without accounting to Plaintiff for profits, Defendant wrongfully deprived

Plaintiff of his rightful share of income therefrom.

95. Defendant’s actions have damaged Plaintiff in an amount not as yet determined or

ascertainable.


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96. Plaintiff is therefore entitled to an accounting of Defendant’s profits with respect

to each VIDEO INVASIONTM

article that Plaintiff penned and/or the VIDEO INVASIONTM

series as a whole, as well as to the VHS Invasion articles.

COUNT VII

CONSTRUCTIVE TRUST


herein.

98. By virtue of the foregoing, in equity any interest in each VIDEO INVASIONTM

article that Plaintiff penned and/or the VIDEO INVASIONTM

series, as well as the VHS Invasion

articles, and profits received by Defendant from their commercial exploitation are the property of

Plaintiff and Defendant in equal shares.

99. Defendant has wrongfully deprived Plaintiff of his share of the profits that

Defendant enjoyed from the commercial exploitation of each VIDEO INVASION TM

article that

he penned and/or the VIDEO INVASIONTM

series as a whole, as well as the VHS Invasion

articles.

100. By virtue of Defendant’s acts, Defendant holds the profits derived from the

exploitation of both the VIDEO INVASIONTM

series and the VHS Invasion articles as

constructive trustee for the benefit of Plaintiff and Defendant.

101. Plaintiff is entitled to immediate possession of his pro rata share of the profits

held by Defendant as constructive trustee.

COUNT VIII

STATUTORY RIGHT OF PUBLICITY


herein.


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103. Plaintiff has the sole and exclusive right of publicity with regard to the use of his

name in Defendant’s magazine.

104. After Plaintiff decided to and did discontinue his working relationship with

Defendant, Defendant published Plaintiff’s name in Defendant’s magazine for the purposes of

trade on at least six different occasions.

105. On information and belief, Defendant’s unauthorized and unlawful use of

Plaintiff’s name was willful, intentional, and knowing.

106. Defendant’s conduct has caused and is causing immediate and irreparable injury

to Plaintiff, his goodwill and reputation, and will continue to damage Plaintiff and deceive the

public unless enjoined by this Court pursuant to Virginia Code Ann. § 8.01-40.

107. Furthermore, as a result of Defendant’s knowing use of Plaintiff’s name, Plaintiff

is entitled to recover actual and exemplary damages pursuant to Virginia Code § 8.01-40.

COUNT IX

COMMON LAW QUANTUM MERUIT


herein.

109. From July, 2008 through January, 2013, Plaintiff authored dozens of in-depth

articles that were published in Defendant’s magazine, including, but not limited to, twenty-six

(26) articles for the VIDEO INVASIONTM

series.

110. On information and belief, Defendant sought out a wide variety of authors,

including Plaintiff, to expand the magazine’s appeal by including a variety of content in each

issue of the HorrorHound magazine. Plaintiff’s VIDEO INVASIONTM

series fulfilled this goal

by appealing to both VHS fans and horror fans.


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111. Defendant repeatedly failed to fairly compensate Plaintiff for his work. Although

Plaintiff was spending several hours creating, writing, designing, and organizing each article,

Defendant in exchange paid Plaintiff small and irregular sums. Plaintiff often had to demand and

then repeatedly follow up with Defendant before receiving these payments.

112. On several occasions, Plaintiff requested additional information regarding how

Defendant calculated Plaintiff’s compensation. In response to one such inquiry, Defendant

informed Plaintiff that he was paid on a “per page” basis. The payment history belies this

purported structure, however, as Plaintiff was at one time paid $40.00 for a six page article and at

another time paid $100.00 for a two page article.

113. When Plaintiff again requested more detailed information regarding payment, he

was assured by Defendant that Plaintiff’s compensation was the “same as the others.” Additional

requests for information by Plaintiff were met by Defendant repeatedly dodging the question and

refusing to provide any substantive information regarding compensation.

114. On information and belief, Defendant’s actions demonstrate an intentional and

willful intent to benefit from Plaintiff’s labor without appropriately compensating Plaintiff

therefor.

115. In addition, Plaintiff purchased various items, including VHS tapes, on behalf of

Defendant. Plaintiff fronted the costs for these items on behalf of Defendant after Defendant

promised to reimburse Plaintiff for such costs.

116. Defendant failed to recompense Plaintiff the significant costs Plaintiff incurred on

behalf of Defendant. Defendant was thus unjustly enriched as a result of Defendant’s actions.

117. As a result of Defendant’s acts, Plaintiff is entitled to recover his actual damages,

costs and reasonable attorneys’ fees in an amount to be determined.


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PRAYER FOR RELIEF

1. WHEREFORE, Plaintiff prays that: Defendant and all of its agents, officers, employees,

representatives, successors, assigns, attorneys, and all other persons acting for, with, by,

through, or under authority from Defendant, or in concert or participation with

Defendant, and each of them, be enjoined permanently, from:

a. Using the VHS INVASION and the VIDEO INVASIONTM

trademarks, or any

other colorable imitation or confusingly similar mark on or in connection with

Defendant’s goods and services ;

b. Using any trademark, service mark, name, logo, design or source designation of

any kind on or in connection with Defendant’s goods or services that is a copy,

reproduction, colorable imitation, or simulation of, or confusingly similar to the

VIDEO INVASIONTM

trademark;

c. Using any trademark, service mark, name, logo, design or source designation of

any kind on or in connection with Defendant’s goods or services that is likely to

cause confusion, mistake, deception, or public misunderstanding that such goods

or services are produced or provided by Plaintiff, is sponsored or authorized by

Plaintiff, or is in any way connected or related to Plaintiffs;

2. Defendant be ordered to recall all products that infringe Plaintiff’s VIDEO INVASIONTM

trademark which have been shipped by Defendant or under its authority, to any customer

including, but not limited to, any wholesaler, distributor, retailer, or marketer;

3. Defendant be ordered to deliver up for impoundment and destruction all magazines and

merchandise, including but not limited to shirts, hats, sweaters, ball caps, etc., in the


22

possession, custody, or under the control of Defendant that is found to adopt, to infringe,

or to dilute Plaintiff’s VIDEO INVASIONTM

trademark or his copyright;

4. Defendant be compelled to account to Plaintiff for any and all profits derived from

Defendant from the sale or distribution of infringing goods as described in this

Complaint, including prejudgment interest thereon;

5. Plaintiff be awarded all damages, expressly including unreimbursed expenses paid by

Plaintiff and unpaid wages, caused by the acts forming the basis of this Complaint,

together with prejudgment interest thereon;

6. Based on Defendant’s knowing and intentional use of Plaintiff’s Mark and a colorable

imitation of Plaintiff’s Mark, the damages award be trebled and the award of Defendant’s

profits be enhanced as provided for by 15 U.S.C. § 1117 and Virginia Code Ann. § 59.1-

92.12;

7. Defendant be required to pay to Plaintiff the cost of this action and Plaintiff’s reasonable

attorneys’ fees pursuant to 15 U.S.C. § 1117 and Virginia Code Ann. § 59.1-92.12;

8. Plaintiff be awarded Plaintiff’s actual damages and Defendant’s profits with respect to

the VHS Invasion articles pursuant to 17 U.S.C. § 504 and Plaintiff’s reasonable

attorneys’ fees and costs pursuant to 17 U.S.C. § 505;

9. If the Court finds that each VIDEO INVASIONTM

article is a joint work, that the Court

declare that each VIDEO INVASIONTM

series comprises joint works of authorship for

which Plaintiff is an author;

10. In the event of a declaratory judgment, that Plaintiff be granted an accounting of profits

from Defendant with respect to each VIDEO INVASIONTM

article that he penned and


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the VIDEO INVASIONTM

series as a whole, as well as the VHS Invasion articles and an

award of attorneys’ fees;

11. In the event of a declaratory judgment, that the Court impress upon Defendant a

constructive trust for all profits and other benefits received by Defendant in the

exploitation of each VIDEO INVASIONTM

article that he penned and the VIDEO

INVASIONTM

series as a whole, as well as the VHS Invasion articles and order

Defendant to pay in damages the amount due to Plaintiff under that constructive trust;

and

12. Such other and further relief as the Court may deem just.

JURY TRIAL DEMAND

Plaintiff respectfully demands a trial by jury on all claims and issues so triable.

DATED: July 31, 2015

_______/s/___________

Pamela C. Gavin, Esq.

VSB No. 37328

Gavin Law Offices, PLC

2229 Pump Road

Richmond, Virginia 23233

Telephone: 804-784-4427

Facsimile: 804-482-2964

[email protected]

Attorney for Ian Mattlock Moore


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 31st day of July, 2015, I electronically filed the

foregoing Plaintiff’s First Amended Original Complaint using CM/ECF. I further certify that the

foregoing document is being served this day on the following through the CM/ECF system:

Jon A. Shiffrin, Esq., VSB No. 67542

Trina A. Long, Esq., VSB. No. 45586

8201 Greensboro Drive, Suite 300

McLean, Virginia 22102

Telephone: (703) 288-5248

Facsimile: (703) 288-4003

[email protected]

[email protected]

_______/s/_________

Pamela C. Gavin

VSB No. 37328

Gavin Law Offices, PLC

2229 Pump Road

Richmond, Virginia 23233

Telephone: 804-784-4427

Facsimile: 804-482-2964

[email protected]

Attorney for Ian Mattlock Moore


moore v. horrorhound - second amended complaint.pdf

Documents

defendant horrorhound

virginia sufficient

llc defendant

plaintiffs claims

subject matter jurisdiction

supplemental jurisdiction

united states district

files plaintiffs