Case 2:17-cv-01058-DSF-AS Document 1 Filed 02/09/17 Page 1 of 12 Page ID #:1

1 Joseph C. Andras (State Bar # 138181)

andras@myersandras.com
2
MYERS ANDRAS LLP
3 19900 MacArthur Blvd., Suite 1150
Irvine, CA 92612
4
Phn: (949) 223-9600
5 Fax: (949) 223-9610
6
Tawnya R. Wojciechowski (State Bar #180063)
7 tawnya@trwlawgroup.com
TRW LAW GROUP
8
19900 MacArthur Boulevard, Suite 1150
9 Irvine, California 92612-8433
Phn: (949) 701-4747
10
Fax: (949) 701-4712
11
Attorney for Plaintiff
12
TIPSY ELVES LLC
13
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16
17 TIPSY ELVES LLC, a California limited Case No.: 2:17-cv-1058
liability company,
18
Plaintiff, COMPLAINT FOR COPYRIGHT
19 INFRINGEMENT, FOR VICARIOUS
v. AND/OR CONTRIBUTORY
20
COPYRIGHT INFRINGEMENT,
MACYS RETAIL HOLDINGS, INC., a
21 AND FOR CONSTRUCTIVE TRUST
Delaware corporation; MIGHTY FINE, a
22 California corporation; and DOES 1
through 10,
23
Defendants.
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1 Plaintiff TIPSY ELVES LLC, by and through its attorneys, alleges as follows:
2
3 JURISDICTION AND VENUE
4 1. This is an action for copyright infringement arising under the Copyright Act
5 of 1976, Title 17 U.S.C. 101 et seq.
6 2. This Court has jurisdiction of this action under 28 U.S.C. 1331, 1338(a)
7 and (b), and under its supplemental jurisdiction.
8 3. Venue is proper in this judicial district under 28 U.S.C. 1391 and
9 1400(a).
10
11 THE PARTIES
12 4. Plaintiff TIPSY ELVES LLC (hereinafter Plaintiff) is a California limited
13 liability company with its principal place of business at 1041 Market Street, #306, San
14 Diego, California 92101.
15 5. Plaintiff is informed and believes, and on that basis alleges, that MACYS,
16 INC. and its subsidiary MACYS RETAIL HOLDINGS, INC. (hereinafter MACYS)
17 are Delaware corporations that conduct business in and with the state of California.
18 6. Plaintiff is informed and believes, and on that basis alleges, that Defendant
19 MIGHTY FINE is a California corporation with its principal place of business in Los
20 Angeles, CA 90021.
21 7. Plaintiff is informed and believes, and on that basis alleges, that some of
22 Defendants DOES 1 through 5, inclusive, are manufacturers and/or vendors of garments
23 to Defendants, and have manufactured and/or supplied, and/or are manufacturing and/or
24 supplying, garments with the SUBJECT ARTWORK (as hereinafter defined) without
25 Plaintiffs knowledge or consent. The true names, whether corporate, individual or
26 otherwise, of Defendants DOES 1 through 5, inclusive, are presently unknown to
27 Plaintiff, which therefore sues said Defendants by such fictitious names, and will seek
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1 leave to amend this Complaint to show their true names and capacities when their true
2 names have been ascertained.
3 8. Plaintiff is informed and believes, and on that basis alleges, that Defendants
4 DOES 6 through 10, inclusive, are other parties not yet identified who have infringed
5 Plaintiffs copyright(s), have contributed to the infringement of Plaintiffs copyright(s),
6 and/or have engaged in one or more of the wrong practices alleged herein. The true
7 names, whether corporate, individual or otherwise, of Defendants DOES 6 through 10,
8 inclusive, are presently unknown to Plaintiff, which therefore sues said Defendants by
9 such fictitious names, and will seek leave to amend this Complaint to show their true
10 names and capacities when their true names have been ascertained.
11 9. Plaintiff is informed and believes, and on that basis alleges, that at all times
12 relevant hereto each of the Defendants was the agent, affiliate, officer, director, manager,
13 principal, alter-ego, and/or employee of the remaining Defendants and was at all times
14 acting with the scope of such agency, affiliation, alter-ego relationship and/or
15 employment; and actively participated in or subsequently ratified and adopted, or both,
16 each and all of the acts or conduct alleged, with full knowledge of all the facts and
17 circumstances, including, but not limited to, full knowledge of each and every violation
18 of Plaintiffs rights and the damages to Plaintiff proximately caused thereby. MACYS,
19 MIGHTY FINE, and DOES 1 through 10 shall sometimes be referred to herein
20 collectively as "Defendants."
21
22
23 BACKGROUND FACTS
24 10. Plaintiff, among other things, designs, manufactures, and sells apparel and
25 related accessories. Plaintiff has established itself as the source of high quality Ugly
26 Christmas Sweaters and has further built its previously seasonal business into a year-
27 round novelty apparel company.
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1 11. Plaintiff is informed and believes, and on that basis alleges, that MACYS
2 business is the retail sales of consumer products, including but not limited to clothing and
3 accessories via its stores worldwide, its website and other third party websites. On
4 information and belief, MACYS also retails clothing products directly to the public over
5 the internet throughout the United States, including substantial sales in and to the State of
6 California.
7 12. Plaintiff is informed and believes, and on that basis alleges, that MIGHTY
8 FINE is a vendor of apparel to MACYS and that MACYS is a customer of MIGHTY
9 FINE.
10 13. Prior to November 15, 2015, Plaintiff created an original work of authorship
11 known as Santa Breaks the Internet. (hereinafter referred to as the SUBJECT
12 ARTWORK).
13 14. The SUBJECT ARTWORK contains material wholly original with Plaintiff
14 that is copyrightable subject matter under the laws of the United States.
15 15. On or about November 15, 2015, Plaintiff published the SUBJECT
16 ARTWORK on its Santa Breaks the Internet sweaters, an Ugly Christmas Sweater that
17 was a popular part of Plaintiffs Christmas Collection for the year 2015. A true and
18 correct photograph of Plaintiffs Santa Breaks the Internet sweaters featuring the
19 SUBJECT ARTWORK is attached hereto as Exhibit 1.
20 16. Plaintiff and its sweaters received significant media attention. For example,
21 on November 25, 2015, amNew York published an article regarding Plaintiffs Santa
22 Breaks the Internet sweater. A true and correct copy of that article which includes a
23 photograph of Plaintiffs sweater is attached hereto as Exhibit 2.
24 17. Plaintiff is informed and believes, and on that basis alleges, that since at
25 least as early as November, 2016, Defendants have been reproducing, distributing,
26 promoting and offering for sale illegal and unauthorized copies of the SUBJECT
27 ARTWORK.
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1 18. Plaintiff is informed and believes, and on that basis alleges, that since at
2 least as early as November, 2016, on its website and in its retail stores, MACYS has
3 been selling a sweatshirt bearing an image that is an unauthorized copy of the SUBJECT
4 ARTWORK (the ACCUSED COPY). A true and correct copy of a website showing
5 the ACCUSED COPY reproduced on a website and on a clothing item depicted therein is
6 attached hereto as Exhibit 3.
7 19. Plaintiff requested that MACYS stop selling the clothing bearing the
8 ACCUSED COPY, and remove the inventory of such clothing bearing the ACCUSED
9 COPY from its stores, both physical and online. Defendant MACYS has not complied to
10 date.
11 20. On or about December 2, 2016, Plaintiff applied to the United States
12 Copyright Office for a Certificate of Registration for its copyright in the SUBJECT
13 ARTWORK. A true and correct copy of Plaintiffs application for copyright registration
14 is attached hereto as Exhibit 4.
15
16
17 FIRST CLAIM FOR RELIEF
18 (For Copyright Infringement Against All Defendants)
19 21. Plaintiff repeats, re-alleges, and incorporates by reference as though fully set
20 forth herein, the allegations contained in paragraphs 1 through 20, inclusive, of this
21 Complaint.
22 22. At all times relevant hereto, Plaintiff has been and still is the holder of the
23 exclusive rights under the Copyright Act of 1976 (17 USC 101 et seq. (Copyright
24 Act), and all amendments thereto) to reproduce, distribute, or license the reproduction
25 and distribution of the SUBJECT ARTWORK shown in Exhibit 1 (sometimes
26 hereinafter Copyrights or Plaintiffs Copyrights).
27 23. The SUBJECT ARTWORK is an original work created by Plaintiff,
28 copyrightable under the Copyright Act. An application for registration of Plaintiffs

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1 Copyrights in the SUBJECT ARTWORK has been duly filed in the United States
2 Copyright Office; all applicable formalities and notice requirements under the Copyright
3 Act have been duly complied with; and Plaintiff has thereby secured and now owns the
4 exclusive right and privilege to enforce its rights in such Copyright.
5 24. Plaintiff is informed and believes and thereupon alleges that Defendants
6 acquired possession of the SUBJECT ARTWORK to which Plaintiff is the owner of
7 exclusive rights represented by the Copyrights, and have reproduced copies without
8 Plaintiff's authorization for sale, license, and/or use in the United States and elsewhere.
9 25. Defendants have sold unauthorized copies of the copyrighted SUBJECT
10 ARTWORK to which Plaintiff owns the exclusive rights under the Copyrights.
11 26. Defendants have infringed Plaintiff's exclusive rights in the SUBJECT
12 ARTWORK by copying, reproducing, and displaying the SUBJECT ARTWORK and/or
13 by distributing, advertising, selling and/or offering for sale or license the unlawfully
14 reproduced SUBJECT ARTWORK.
15 27. Plaintiff has never authorized Defendants, by license or otherwise, to copy
16 or reproduce the SUBJECT ARTWORK by incorporating it into apparel or on websites.
17 28. Each infringing sale of the ACCUSED COPY, as well as the threat of
18 continuing the same, constitutes a separate claim against Defendants under the Copyright
19 Act. Plaintiff has sustained, and will continue to sustain, substantial damage to the value
20 of the SUBJECT ARTWORK in that the previously described activities of Defendants
21 have directly diminished and will continue to diminish the revenue which Plaintiff would
22 otherwise receive.
23 29. Defendants have realized unlawful and unjust profits from the unauthorized
24 and illegal reproduction and use of the SUBJECT ARTWORK.
25 30. Defendants have continued to infringe said Copyrights in the SUBJECT
26 ARTWORK, and unless temporarily, preliminarily and permanently enjoined by Order of
27 this Court, will continue to infringe said Copyrights, all to Plaintiff's irreparable injury.
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1 As a result of Defendants acts of infringement, Plaintiff is without an adequate remedy

2 at law in that damages are difficult to ascertain.
3 31. Defendants have committed all of the aforesaid acts of infringement
4 deliberately, willfully, maliciously and oppressively, without regard to Plaintiff's
5 proprietary rights.
6
7
8 SECOND CLAIM FOR RELIEF
9 (For Vicarious and/or Contributory Copyright Infringement Against All
10 Defendants)
11
12 32. Plaintiff repeats, re-alleges, and incorporates by reference as though fully set
13 forth herein, the allegations contained in paragraphs 1 through 31, inclusive, of this
14 Complaint.
15 33. Plaintiff is informed and believes and thereon alleges that Defendants, and
16 each of them, knowingly induced, participated in, aided and abetted, and resultantly
17 profited from the illegal reproduction, and/or creation of derivative works based on the
18 Subject Photographs as alleged herein.
19 34. Plaintiff is informed and believes and thereon alleges that Defendants, and
20 each of them, are vicariously liable for the infringement alleged herein because they had
21 the right and ability to supervise the infringing conduct and because they had a direct
22 financial interest in the infringing conduct.
23 35. By reason of the Defendants, and each of their, acts of contributory and/or
24 vicarious infringement as alleged above, Plaintiff has suffered and will continue to suffer
25 substantial damages to its business in an amount to be established at trial.
26 36. By reason of the Defendants, and each of their, acts of contributory and/or
27 vicarious infringement as alleged above, Plaintiff has suffered and will continue to suffer
28 general and special damages to its business in an amount to be established at trial.

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1 37. Due to Defendants acts of contributory and/or vicarious copyright

2 infringement, Defendants, and each of them, have obtained direct and indirect profits
3 they would otherwise not have realized but for their infringement of the Subject
4 Photographs. As such, Plaintiff is entitled to disgorgement of Defendants profits directly
5 and indirectly attributable to Defendants infringement of the SUBJECT COPYRIGHT in
6 an amount to be established at trial.
7
8 THIRD CLAIM FOR RELIEF
9 (For Constructive Trust)
10
11 38. Plaintiff repeats, re-alleges, and incorporates by reference as though fully set
12 forth herein, the allegations contained in paragraphs 1 through 37, inclusive, of this
13 Complaint.
14
15 39. Plaintiff is entitled to the profits that each Defendant has derived from the
16 infringement of Plaintiff's rights pursuant to the statutory laws of United States.
17 Alternatively, Plaintiff is entitled to statutory damages and attorneys fees under the
18 statutes comprising the copyright laws of the United States.
19
20 40. Upon information and belief, Plaintiff alleges that each Defendant owns and
21 possesses tangible real and personal property and assets including, but not limited to, real
22 estate, bank savings and other financial accounts, consisting of profits from or obtained
23 by Defendants illegal and tortious acts, as alleged herein.
24
25 41. Upon information and belief, Plaintiff alleges that each Defendant retains
26 possession of the Artwork, which Plaintiff alleges are used by each Defendant in the
27 continuing infringing activities described hereinabove, and Plaintiff requests that the
28 court impose a constructive trust over these profits for the benefit of Plaintiff.

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1
2 42. Defendant holds the above-mentioned tangible real and personal property
3 and assets as constructive trustees for the benefit of Plaintiff, in an amount to be proven
4 at trial.
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6 43. Plaintiff has no adequate remedy at law.
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1 PRAYER FOR RELIEF

2
3 Wherefore, Plaintiff requests that this Court:
4 1. Enter judgment that each Defendant has infringed upon Plaintiff's
5 Copyrights in its SUBJECT ARTWORK.
6 2. Enter judgment that each Defendants use, advertising, offering to sell, sale,
7 or display of the ACCUSED COPY on its website and incorporated in apparel constitutes
8 an infringement of Plaintiff's Copyrights.
9 3. For an order enjoining each Defendant, and each Defendants officers,
10 agents, employees, and those acting in concert or conspiracy with them, permanently
11 from:
12 a. infringing or contributing to or participating in the infringement by
13 others of any of the Copyrights or acting in concert with, aiding and abetting others to
14 infringe any of said Copyrights in any way;
15 b. copying, duplicating, selling, renting, marketing, leasing, distributing,
16 offering for sale over the internet, or otherwise disposing of any ACCUSED COPY to
17 which Plaintiff is the owner of exclusive rights under its Copyrights;
18 4. That, with respect to the First Claim for Relief, Defendant be required to
19 modify its website to completely remove any product bearing the ACCUSED COPY,
20 and all Defendants account for and pay over to Plaintiff the actual damages suffered by
21 Plaintiff as a result of the infringement and any profits of the Defendants attributable to
22 the infringement of Plaintiff's Copyrights and to pay such damages and profits to Plaintiff
23 as shall appear just and proper to this Court within the provisions of the Copyright Act;
24 5. That each Defendant be permanently enjoined from duplicating,
25 reproducing, copying, advertising, selling, offering for sale over the internet, or in any
26 other manner using unauthorized copies of the SUBJECT ARTWORK;
27 6. That Plaintiff recover its attorney's fees and costs of suit incurred herein; and
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1 7. That Plaintiff have such other and further relief as this Court deems just and
2 proper.
3
4 Dated: February 9, 2017 /s/ Joseph C. Andras
Joseph C. Andras (State Bar # 138181)
5
andras@myersandras.com
6 MYERS ANDRAS LLP
19900 MacArthur Blvd., Suite 1150
7
Irvine, CA 92612
8 Phn: (949) 223-9600
Fax: (949) 223-9610
9
10 Tawnya R. Wojciechowski (State Bar #180063)
tawnya@trwlawgroup.com
11
TRW LAW GROUP
12 19900 MacArthur Boulevard, Suite 1150
Irvine, California 92612-8433
13
Phn: (949) 701-4747
14 Fax: (949) 701-4712
15
Attorney for Plaintiff
16 TIPSY ELVES LLC
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1 DEMAND FOR JURY TRIAL

2 Plaintiff hereby demands trial by jury of all issues triable by jury.
3
4 Dated: February 9, 2017 /s/ Joseph C. Andras
Joseph C. Andras (State Bar # 138181)
5
andras@myersandras.com
6 MYERS ANDRAS LLP
19900 MacArthur Blvd., Suite 1150
7
Irvine, CA 92612
8 Phn: (949) 223-9600
Fax: (949) 223-9610
9
10 Tawnya R. Wojciechowski (State Bar #180063)
tawnya@trwlawgroup.com
11
TRW LAW GROUP
12 19900 MacArthur Boulevard, Suite 1150
Irvine, California 92612-8433
13
Phn: (949) 701-4747
14 Fax: (949) 701-4712
15
Attorney for Plaintiff
16 TIPSY ELVES LLC
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