IN THE CIRCUIT COURT FOR THE COUNTY OF ROANOKE

VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF ROANOKE Andrew E. Marsinko, Plaintiff v. John B. Burwell 6208 30th St NW Washington, DC 20015 SERVE: ...
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VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF ROANOKE Andrew E. Marsinko, Plaintiff v. John B. Burwell 6208 30th St NW Washington, DC 20015 SERVE: Secretary of the Commonwealth Claudia C. Burwell 6208 30th St NW Washington, DC 20015 SERVE: Secretary of the Commonwealth Jupitermedia Corporation, a Delaware corporation 23 Old Kings Highway S Darien, CT 06820 SERVE: Secretary of the Commonwealth Getty Images, Inc., a Delaware corporation 601 N. 34th St Suite 400 Seattle, WA 98103 SERVE: Secretary of the Commonwealth EMP Media, LLC a Missouri limited liability company 2107 Grand Boulevard Suite C-2 Kansas City, MO 64108 SERVE: Secretary of the Commonwealth

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Case No. ________________

Leanin’ Tree, Inc., a Colorado corporation 6055 Longbow Dr Boulder, CO 80301

) ) ) ) ) SERVE: Secretary of the Commonwealth ) ) and ) ) Trumble Greetings, Inc. ) a Colorado corporation ) 6055 Longbow Dr ) Boulder, CO 80301 ) ) SERVE: Secretary of the Commonwealth ) ) Defendants ) __________________________________________) COMPLAINT The plaintiff, Andrew E. Marsinko, states: 1.

The plaintiff, Andrew E. Marsinko, is a resident of Botetourt County, Virginia.

2. The defendants John B. Burwell and Claudia C. Burwell are husband and wife and reside in the District of Columbia. They jointly operate a professional photography business located in the District of Columbia known as Burwell & Burwell Photography. 3. The defendant Jupitermedia Corporation is a Delaware corporation with its principal place of business in Darien, Connecticut. It engages in the business of selling or licensing, and distributing, stock photographs on the Internet and otherwise. 4. The defendant Getty Images, Inc. is a Delaware corporation with its principal place of business in Seattle, Washington. It engages in the business of selling or licensing, and distributing, stock photographs on the Internet and otherwise. 5. The defendant EMP Media is a Missouri limited liability company with its principal place of business in Kansas City, Missouri. It is an independent design studio engaged in the business of creating and selling, or licensing, creative content to greeting card publishers and distributors. 6. The defendant Leanin’ Tree, Inc. is a Colorado corporation with its principal place of business in Boulder, Colorado. It is engaged in the business of selling or licensing, and distributing, greeting cards.

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7. The defendant Trumble Greetings, Inc. is a Colorado corporation with its principal place of business in Boulder, Colorado. It is engaged in the business of selling or licensing, and distributing, greeting cards. 8. Each of the above-named defendants caused tortious injury by the acts in the Commonwealth of Virginia, including Roanoke County, hereinafter described. 9. Each of the above-named defendants regularly solicits and does business in the Commonwealth of Virginia, derives substantial revenue from goods used or services rendered in the Commonwealth of Virginia, and otherwise engages in a persistent course of conduct in the Commonwealth of Virginia, including Roanoke County. 10. Each of the above-named defendants caused tortious injury in the Commonwealth of Virginia by the acts outside Virginia hereinafter described. 11. The plaintiff, Andrew E. Marsinko, is engaged in the business of poultry farming and is widely known and respected throughout the United States, including within the Commonwealth of Virginia, for his expertise and his honorable reputation. The plaintiff is among the fewer than 50 persons nationwide to be included by the American Poultry Association in its Exhibitor’s Hall of Fame. The plaintiff serves as the Northeast Director of the International Waterfowl Breeders Association. The plaintiff serves as Second Vice President of the North American Hamburg Society. The plaintiff is a past Director and past Vice President of the Virginia Poultry Breeders Association. 12. In approximately the year 1996 the defendant John B. Burwell was engaged by the State Fair of Virginia, Inc. to take photographs for the limited purpose of promoting the State Fair of Virginia. For that limited purpose, the defendant John B. Burwell took photographs of the plaintiff. 13. Sometime thereafter, the defendants John B. Burwell and Claudia C. Burwell, even though they knew they did not have the right to do so, decided to profit from the photograph the defendant John B. Burwell had previously taken of the plaintiff, and sold or licensed the image of the plaintiff to the defendant Jupitermedia Corporation. 14. The defendant Jupitermedia Corporation thereupon posted the plaintiff’s image on the Internet thereby publishing plaintiff’s image throughout the world, including in Roanoke County, Virginia, and falsely represented to the world that plaintiff had signed a release authorizing such use, when in fact he had not. 15. The defendant EMP Media, LLC created a greeting card using the image of the plaintiff which the defendant Jupitermedia Corporation had posted on the Internet. 16. The defendant Jupitermedia Corporation thereafter sold its “rights” to the image of plaintiff (even though in fact it did not have any rights in it) to the defendant Getty Images, Inc.

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17. The defendants Leanin’ Tree, Inc. and Trumble Greetings, Inc. are alter egos of the same enterprise engaged in the business of producing and selling greeting cards. EMP Media, LLC sold or licensed the greeting card it created using plaintiff’s image to Leanin’ Tree, Inc. and Trumble Greetings, Inc. A copy of the greeting card is attached hereto and incorporated herein. 18. The defendants Leaning’ Tree, Inc. and Trumble Greetings, Inc. distributed throughout the United States and Canada, including in Roanoke County, Virginia, a 2006 catalog advertising greeting cards for sale, including the subject card using plaintiff’s image, and otherwise advertised for sale and sold throughout the United States and Canada, including Roanoke County, Virginia, a substantial number of the subject card using plaintiff’s image, without having exercised appropriate care and diligence to determine that plaintiff had not authorized such use. 19. The image posted on the Internet, the image appearing in the catalogue, and the image appearing on the greeting card referred to herein are clearly recognizable as being that of the plaintiff. 20. The subject card gives credit to the defendants EMP Media, LLC; John E. Burwell; and Getty Images, Inc. for authorship of the card by stating on the reverse side that all of them claim a copyright on the card (when in fact they have no such authority to claim a copyright). 21. At an animal auction in Mt. Hope, Ohio on or about September 13, 14 and 15, 2006, attendees made disparaging comments to the plaintiff such as these, or words to like effect: (i) “Saw your card: When did you give up women to hug a goose?”; (ii) “The bird on the right looks good, but the one of the left is a dumb turkey;” (iii) “You make a good pair”; and (iv) “Do you get feathers in your mouth with your new love?” At that time the plaintiff had not seen the card and didn’t understand the reason for the disparaging comments. 22. On or after September 19, 2006, plaintiff first became aware of the subject greeting card when the operator of a feed store who knew the plaintiff told him that the store had received a greeting card with plaintiff’s image on it. 23. Shortly after learning about the card, the plaintiff contacted defendant Leanin’ Tree, Inc. concerning the card. The defendant Leanin’ Tree, Inc. thereupon, for the first time and after the subject card had been distributed and sold, undertook to determine whether plaintiff had signed a release authorizing such use. The defendant Leanin’ Tree, Inc. contacted the defendant Getty Images, Inc., the then-current “licensor” of plaintiff’s image (which it purported to have authority to do when in fact it did not). The defendant Getty Images, Inc. thereupon falsely represented to defendant Leanin’ Tree, Inc. that plaintiff had signed a release authorizing such use, when in fact he had not. 24. The actions of the defendants caused the plaintiff to become the object of further disparaging comments from people he barely knew and from absolute strangers, including the following comments, or words to like effect:

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a. At an animal auction in Macon, Missouri on or about September 28, 29 and 30, 2006, one person said to the plaintiff: “Good picture of the goose. Can’t say much for you.” The plaintiff had a cold sore during this trip. Another person said: “Did the goose bite your lip?” The plaintiff was introduced to perfect strangers at the crowded check-in area as the “sex maniac from Virginia that traded women for a goose.” The plaintiff observed people laughing and talking following that introduction. Within ten minutes of the that public comment, a boy of approximately 10 years of age came up to plaintiff and asked: “Are you really a pervert?” b. On or about September 28, 2006 in a motel in Mr. Vernon, Illinois, the site of another auction, a person came up to plaintiff and said: “They don’t let animals in rooms. You’ll have to stay alone.” c. On or about September 30, 2006 at a poultry farmer’s show in Harrington, Delaware, plaintiff heard disparaging comments such as: (i) “Your girlfriend sure has a long neck;” (ii) Turkey on left - goose on right;” and (iii) “You can go eat with us, but you have to leave your girlfriend here.” d. On or about November 4, 2006 at a poultry farmer’s show in Fredrick, Maryland, plaintiff was hurt by disparaging comments such as (i) “Saw your card – did you bring her to hug?”; and you must be “really hard up for business.” An especially damaging comment was: “Were you really that stupid to put this card out?” e. On or about December 2, 2006 at yet another poultry breeder’s show, this one in Glen Allen, Virginia, a disparaging comment was made in front of Mr. Marsinko: “Have you seen dummy’s picture on the card?” Another person said: “Some people will do anything to get attention.” 25. By the actions of the defendants of which plaintiff complains, the defendants, and each of them, have profited at plaintiff’s expense. 26. As a direct and proximate result of the wrongs of which plaintiff herein complains, the defendants, and each of them, have caused plaintiff to suffer ridicule, embarrassment, humiliation, loss of reputation, anxiety, depression, nervousness, inability to concentrate; to be a “nervous wreck”; to have an “anxious stomach” and to suffer nervous tension resulting in diarrhea and headache. As a direct and proximate result of the wrongs of which plaintiff herein complains, the defendants, and each of them, have caused plaintiff to fear going into places where there are groups of people. COUNT 1 DEFAMATION 27.

The plaintiff realleges paragraphs 1 – 26.

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28. By posting plaintiff’s image on the Internet which was viewable and downloadable in Roanoke County, Virginia, by distributing in Roanoke County, Virginia, plaintiff’s image in the catalogue referred to herein, and by advertising and selling in Roanoke County, Virginia the greeting card referred to herein, each of the defendants has published plaintiff’s image in Roanoke County, Virginia. 29. The greeting card referred to herein contains the statement: “Since its your birthday, you decide – Would you rather get spanked . . . or goosed?” and which depicts an image of the plaintiff holding a goose. 30.

The slang term “goosed” is understood to mean to poke or prod a person in the

anus. 31. The statement on the card, together with the image of the plaintiff on the card, create a message that the plaintiff would engage in “goosing” someone, which he would not. 32. The message of the card that plaintiff would engage in “goosing” someone is false and defamatory. 33. By their actions described herein, each of the defendants participated in the publication of the card which is false and defamatory, and each acted with a reckless disregard of the truth. 34. To engage in the activity of “goosing” someone is a criminal offense which violates the provisions of Virginia Code §18.2-67.2. 35. The message of the card accuses plaintiff of engaging in criminal activity and constitutes defamation per se pursuant to the common law of Virginia. 36. The plaintiff is engaged in the business of poultry farming and derives his livelihood from poultry farming. 37. The message of the card prejudices plaintiff in his trade or business, and constitutes defamation per se pursuant to the common law of Virginia. COUNT 2 UNAUTHORIZED USE OF PICTURE VIRGINIA CODE §8.01-40 38.

The plaintiff realleges paragraphs 1 – 26.

39. By the actions complained of, the defendants, and each of them, profited in their trade or business.

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40. By the actions complained of, the defendants, and each of them, used plaintiff’s image for advertising purposes or for the purposes of trade without plaintiff’s written consent in violation of Virginia Code §8.01-40. 41. The defendants John B. Burwell and Claudia C. Burwell knowingly used plaintiff’s image for advertising purposes or for the purposes of trade without plaintiff’s written consent. COUNT 3 STATUTORY CONSPIRACY VIRGINIA CODE §§18.2-499A, 500 42.

The plaintiff realleges paragraphs 1 – 26.

43. The plaintiff is engaged in the business of poultry farming and derives his livelihood from it. 44. By the acts described herein of which plaintiff complains, the defendants, and each of them, combined, associated, agreed, mutually undertook and engaged in concerted action with the other defendants to injure plaintiff in his reputation, trade or business in violation of Virginia Code §§18.2-499, 500. 45. By selling or licensing plaintiff’s image knowing they did not have a release authorizing them to do so, the defendants John B. Burwell and Claudia C. Burwell each acted intentionally, purposefully and without legal justification to injure plaintiff in his reputation, trade or business in violation of Virginia Code §§18.2-499A, 500. 46. By representing to the world on the Internet, including within the Commonwealth of Virginia, that it had a signed release authorizing the use of plaintiff’s image, when in fact it did not, the defendant Jupitermedia Corporation acted intentionally, purposefully and without legal justification to injure plaintiff in his reputation, trade or business in violation of Virginia Code §§18.2-499A, 500. 47. By representing to the defendant Leanin’ Tree, Inc. that it had a signed release authorizing the use of plaintiff’s image, when in fact it did not, the defendant Getty Images, Inc. acted intentionally, purposefully and without legal justification to injure plaintiff in his reputation, trade or business in violation of Virginia Code §§18.2-499A, 500. 48. By failing to exercise appropriate care and diligence sufficient to determine that the plaintiff had not executed a release authorizing the use of his image, the defendants EMP Media, LLC, Leanin’ Tree, Inc. and Trumble Greetings, Inc. participated with the other defendants, John B. Burwell, Claudia C. Burwell, Jupitermedia Corporation and Getty Images, Inc. in concerted action to injure plaintiff in his trade or business in violation of Virginia Code §§18.2-499A, 500.

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COUNT 4 STATUTORY CONSPIRACY ATTEMPT VIRGINIA CODE §18.2-499B, 500 49.

The plaintiff realleges paragraphs 1 – 26.

50. The plaintiff is engaged in the business of poultry farming and derives his livelihood from it. 51. By offering plaintiff’s image for sale or license knowing they did not have a release authorizing them to do so, the defendants John B. Burwell and Claudia C. Burwell, each acted intentionally, purposefully and without legal justification in attempting to procure the participation, cooperation, agreement, or assistance of others to injure plaintiff in his reputation, trade or business in violation of Virginia Code §§18.2-499B, 500. 52. By representing to the world on the Internet, including within the Commonwealth of Virginia, that it had a signed release authorizing the use of plaintiff’s image, when in fact it did not, the defendant Jupitermedia Corporation acted intentionally, purposefully and without legal justification in attempting to procure the participation, cooperation, agreement, or assistance of others to injure plaintiff in his reputation, trade or business in violation of Virginia Code §§18.2499B, 500. 53. By representing to the defendant Leanin’ Tree, Inc. that it had a signed release authorizing the use of plaintiff’s image, when in fact it did not, the defendant Getty Images, Inc. acted intentionally, purposefully and without legal justification in attempting to procure the participation, cooperation, agreement, or assistance of others to injure plaintiff in his reputation, trade or business in violation of Virginia Code §§18.2-499B, 500. COUNT 5 INTENTIONAL OR RECKLESS INFLICTION OF EMOTIONAL DISTRESS 54.

The plaintiff realleges paragraphs 1 – 26.

55. By offering plaintiff’s image for sale or license knowing they did not have a release authorizing them to do so, the defendants John B. Burwell and Claudia C. Burwell sought to profit at plaintiff’s expense and each engaged in intentional or reckless conduct which is outrageous, atrocious and utterly intolerable in a civilized community. 56. As a direct and proximate result of the wrongs of which plaintiff herein complains, the defendants John B. Burwell and Claudia C. Burwell, and each of them, have caused plaintiff to suffer severe emotional distress, ridicule, embarrassment, humiliation, loss of reputation, anxiety, depression, nervousness, inability to concentrate; to be a “nervous wreck”; to have an “anxious stomach” and to suffer nervous tension resulting in diarrhea and headache. As a direct and proximate result of the wrongs of which plaintiff herein complains, the defendants John B. Burwell and Claudia C. Burwell, and each of them, have caused plaintiff to fear going into places where there are groups of people.

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WHEREFORE, the plaintiff requests: 1.

That the court permanently enjoin each of the defendants from any further unauthorized use of plaintiff’s image;

2.

That the court award compensatory damages in the amount of two and a half million dollars ($2,500,000.00) jointly and severally against all defendants for the wrongs alleged in counts 1, 2, and 3;

3.

That the court award exemplary damages in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00) jointly and severally against all defendants for the wrongs alleged in Count 1;

4.

That the court award exemplary damages in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00) jointly and severally against the defendants John B. Burwell and Claudia C. Burwell, jointly and severally for the wrongs alleged in Count 2;

5.

That as provided in Virginia Code §§18.2-499, 500, the court treble the damages awarded against each defendant for an award of treble damages in the amount of Seven Million Five Hundred Thousand Dollars ($7,500,000.00) jointly and severally against all defendants for the wrongs alleged in Court 3;

6.

That the court award compensatory damages in the amount of two and a half million dollars ($2,500,000.00) jointly and severally against the defendants John B. Burwell, Claudia C. Burwell, Jupitermedia Corporation, and Getty Images, Inc. for the wrongs alleged in Count 4;

7.

That as provided in Virginia Code §§18.2-499, 500, the court treble the damages awarded against the defendants John B. Burwell, Claudia C. Burwell, Jupitermedia Corporation, and Getty Images, Inc. for an award of treble damages in the amount of Seven Million Five Hundred Thousand Dollars ($7,500,000.00) jointly and severally against the defendants John B. Burwell, Claudia C. Burwell, Jupitermedia Corporation, and Getty Images, Inc. for the wrongs alleged in Court 4;

8.

That the court award compensatory damages in the amount of two and a half million dollars ($2,500,000.00) jointly and severally against the defendants John B. Burwell and Claudia C. Burwell for the wrongs alleged in count 5;

9.

That the court award plaintiff attorneys’ fees as permitted by Virginia Code §18.2-500; and

10.

That the court award plaintiff its costs expended in this matter

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Andrew E. Marsinko

______________________________ Of Counsel David G. Harrison, Esquire (VSB #17590) The Harrison Firm, PC 5305 Medmont Circle Roanoke, VA 24018-1120 Tel (540) 777-7100 Fax (540) 777-7101

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