Keck v. FX Networks - Archer TV show - painter copyright complaint.pdf

JS 44C/SDNY

REV. 4/2014nCC f"r>.'^

JU"O CIVIL COVER SHEET

TheJS-44 civil coversheet and the information contained hereinneitherreplacenorsupplementthe filing and serviceofpleadings orotherpapersas required bylaw, except as provided bylocal rules ofcourt. This form, approved bytheJudicial Conference ofthe United States inSeptember1974,is required foruse ofthe Clerk ofCourtforthe purposeofinitiating the civil docket sheet. # n^ _^

DEFENDANTS -*- ^JFX NETWORKS, LLC,TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC, andDOFS 1-10

ATTORNEYS (IF KNOWN)

PLAINTIFFS

MICHEL LEAH KECK

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

BRESSLER LAW PLLC, 3 WEST 35TH ST., 9TH FL, NEW YORK, NY10001

TEL (917) 969-4343

CAUSE OFACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

17 USC 101 et seq. (including Sec. 501 direct and indirect copyright infringement; Sec. 1202 copyright management info, violations)

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? Nc&esQludge Previo|Jl4|esig'r}ed/

If yes, was this case Vol. Q Invol. []] Dismissed. No Q Yes Q If yes, give date &Case No.

Is THISAN INTERNATIONAL ARBITRATION CASE?

(PLACE AN [x] INONEBOXONLY)

No 0 Yes

NATURE OF SUIT

CONTRACT PERSONAL INJURY

[ J no INSURANCE ( J310 AIRPLANE[ 1120 MARINE ( ] 315 AIRPLANE PRODUCT[ ]130 MILLER ACT LIABILITY[ 1140 NEGOTIABLE [ J320 ASSAULT, LIBEL &

INSTRUMENT SLANDER[]150 RECOVERY OF | ] 330 FEDERAL

OVERPAYMENT & EMPLOYERS'

ENFORCEMENT LIABILITY

OF JUDGMENT [ ] 340 MARINE[ ] 151 MEDICARE ACT [ ]345 MARINE PRODUCT[ ]152 RECOVERY OF LIABILITY

DEFAULTED [ ] 350 MOTOR VEHICLESTUDENT LOANS [ ] 355 MOTOR VEHICLE(EXCL VETERANS) PRODUCT LIABILITY

[]153 RECOVERY OF [ ] 360 OTHER PERSONALOVERPAYMENT INJURY

OF VETERAN'S [ ] 362 PERSONAL INJURY -BENEFITS MED MALPRACTICE

[]160 STOCKHOLDERSSUITS

[ ] 190 OTHERCONTRACT

[ ]195 CONTRACTPRODUCT ACTIONS UNDER STATUTES

LIABILITY

[ ] 196 FRANCHISE CIVIL RIGHTS

[ ) 440 OTHER CIVIL RIGHTS

REAL PROPERTY(Non-Prisoner)

[ ] 441 VOTING[ 1210 LAND [ j442 EMPLOYMENT

CONDEMNATION [ ] 443 HOUSING/[ ]220 FORECLOSURE ACCOMMODATIONS[ ]230 RENT LEASE & [ ] 445 AMERICANS WITH

EJECTMENT DISABILITIES -

[ I 240 TORTS TO LAND EMPLOYMENTI ]245 TORT PRODUCT [ 1446 AMERICANS WITH

LIABILITY DISABILITIES -OTHER

[ ]290 ALL OTHERREAL PROPERTY

[ ] 448 EDUCATION

Check ifdemandedincomplaint:

CHECK IF THIS IS ACLASS ACTIONUNDER F.R.C.P. 23

PERSONAL INJURY[ J 367 HEALTHCARE/PHARMACEUTICAL PERSONAL , , 625 DRUG RELATEDINJURY/PRODUCT LIABILITY

[ ] 365 PERSONAL INJURYPRODUCT LIABILITY

[ J 368 ASBESTOS PERSONALINJURY PRODUCT

LIABILITY

PERSONAL PROPERTY

[ ] 370 OTHER FRAUD[ ] 371 TRUTH IN LENDING

FORFEITURE/PENALTY

SEIZURE OF PROPERTY

21 USC 881

[ ] 690 OTHER

[ ) 380 OTHER PERSONALPROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGEPRODUCT LIABILITY

PRISONER PETITIONS

[ ]463 ALIEN DETAINEE[ ] 510 MOTIONS TO

VACATE SENTENCE2B USC 2255

( ] 530 HABEAS CORPUS[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS & OTHER

LABOR

[ ] 710 FAIR LABORSTANDARDS ACT

[ ) 720 LABOR/MGMTRELATIONS

[ ] 740 RAILWAY LABOR ACT

[ ] 751 FAMILY MEDICALLEAVEACT (FMLA)

[ ] 790 OTHER LABORLITIGATION

[ ] 791 EMPL RET INCSECURITY ACT

IMMIGRATION

[ ] 462 NATURALIZATIONAPPLICATION

[ J 465 OTHER IMMIGRATIONACTIONS

PRISONER CIVIL RIGHTS

[ ] 550 CIVIL RIGHTS[ ) 555 PRISON CONDITION[ ] 560 CIVIL DETAINEE

CONDITIONS OF CONFINEMENT

CV 199&V

fj- -.I *>W

ACTIONS UNDER STATUTES

BANKRUPTCY OTHER STATUTES

I 1375 FALSE CLAIMS[ J422 APPEAL [J 400 STATE

28 USC 158 REAPPORTIONMENT[ 1423 WITHDRAWAL [ ]410 ANTITRUST

28 USC 157 [ ]430 BANKS & BANKING( ]450 COMMERCEI J460 DEPORTATION

PROPERTY RIGHTS [ ] 470 RACKETEER INFLUENCED & CORRUPT

[X] 520 COPYRIGHTS ORGANIZATION ACT[ 1830 PATENT (RICO)[ 1 840 TRADEMARK [ ] 480 CONSUMER CREDIT

[ ] 490 CABLE/SATELLITE TV

SOCIAL SECURITY [ ] 850 SECURITIES/COMMODITIES/

[ ] 861 HIA (1395ff) EXCHANGE[ 1862 BLACK LUNG (923)[ ] 863 DIWC/DIWW (405(g))[ ] 864 SSID TITLE XVI[ ] 865 RSI (405(g)) ( ] 890 OTHER STATUTORY

ACTIONS

[ ) 891 AGRICULTURAL ACTSFEDERALTAX SUITS

[ ] 870 TAXES (U.S. Plaintiff orDefendant)

[ ] 871 IRS-THIRD PARTY26 USC 7609

[ ] 893 ENVIRONMENTALMATTERS

[ ] 895 FREEDOM OFINFORMATION ACT

[ ] 896 ARBITRATION

( J 899 ADMINISTRATIVEPROCEDURE ACT/REVIEW OR

APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITY OFSTATE STATUTES

DEMAND $250,000+ other injunction

PPgY^O^Cl^M THIS CASE IS RELATED TO ACIVIL CASE NOW PENDING IN S.D.N.Y.?

JUDGE DOCKET NUMBER

Check YES onlyifdemandedin complaintJURY DEMAND: EYES LKlO NOTE: You mustalso submitat the timeof filing the Statement of Relatednessform (Form IH-32).

ORIGIN(PLACE AN x INONEBOXONLY)

1 Original (Zl 2Proceeding s(ate Couft ^

| | 3. all parti*; represented

Removed from L-1 3 Remanded Lj 4 Reinstated or LJ 5 Transferred from Q 6Reopened

Multidistrict

LitigationI I 7 Appeal toDistrict

Judge fromMagistrate JudgeJudgment

from

AppellateCourt

| | b. Atleastoneparty is pro se.

(PLACEAN XINONEBOXONLY) BAS|S OF JURISDICTION 1 U.S. PLAINTIFF Q 2 U.S. DEFENDANT fx] 3 FEDERAL QUESTION D4 DIVERSITY

(U.S. NOT A PARTY)

(Specify District)

IF DIVERSITY, INDICATECITIZENSHIP BELOW.

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)

CITIZEN OR SUBJECT OF AFOREIGN COUNTRY

PTF DEF

[ ]3[ |3

PTF DEF

CITIZEN OF THISSTATE ( ] 1 | ] 1

CITIZEN OF ANOTHERSTATE ( )2 | ]2 INCORPORATED or PRINCIPALPLACE [ ) 4 [ ) 4OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

MICHEL LEAH KECK

271 EAST 400 SOUTH

VALPARAISO, IN 46383

PTF DEF

INCORPORATED and PRINCIPALPLACE (]5 []5OF BUSINESS IN ANOTHER STATE

FOREIGN NATION ]6

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

FX NETWORKS, LLC, Fox Networks Group, P.O. Box 900, Beverly Hills, CA 90213, Los AngelesCounty.TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC, 2121 Avenue of the Stars, 7th Floor,Los Angeles, CA 90067, Los Angeles County.

DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT. AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE. TO ASCERTAIN

RE31BENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

DOES 1-10

Check one: THIS ACTION SHOULD BE ASSIGNED TO: Q WHITE PLAINS \x\ MANHATTAN(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTSCOMPLAINT.)

DATE 3/17/15. it^NATURE OF ATTORNEY OF RECORD ADMITTED TO PRACTICE IN THIS DISTRICTA/\\V-w- ~_ 11 N0\Jt\\_S>

IN THE UNITED STATES DISTRICT COURT JUDGE ENGELMAYERFOR THE SOUTHERN DISTRICT OF NEW YORK

MICHEL LEAH KECK,

Plaintiff,

15 CV 1

FX NETWORKS, LLC, TWENTIETH CENTURY FOX

HOME ENTERTAINMENT LLC, and DOES 1-10,

Defendants.

Civ. Act. No.

COMPLAINT

DEMAND FOR JURY TRIAL

COMPLAINT

Plaintiff Michel Leah Keck ("Keck"), by and via its counsel of record BRESSLER

LAW PLLC, alleges for its Complaint against FX Networks, LLC ("FX Networks"). Twentieth

Century Fox Home Entertainment LLC ("Fox Home Entertainment"), and DOES 1-10

(collectively, FX Networks, Fox Home Entertainment and DOES 1-10 are the "Defendants"):

Nature of the Action

1. This is a civil action againstDefendants for their wrongful acts of directand

indirect copyright infringement and for their copyright management information ("CM")

violations (U.S. CopyrightAct, 17 U.S.C. 101 et seq.).

The Parties

2. Plaintiff Keck is an individual having an address at 271 East 400 South,

Valparaiso, IN 46383.

3. Defendant FX Networks is a limited liability company organized under the laws

of the State of Delaware and qualified to do business in New York. On information andbelief,

FX Networks has a mailing address at Fox Networks Group, P.O. Box 900, Beverly Hills, CA

90213-0900. Its registered agent for receipt of service of process recorded with the New York

State Department of State is CT Corporation System, 111 Eighth Avenue, New York, New York

10011.

4. Defendant Fox Home Entertainment is a limited liability company organized

under the laws of the State of Delaware and qualified to do business in New York. On

information and belief, Fox Home Entertainment has a mailing address at 2121 Avenue of the

Stars, 7th Floor, Los Angeles, California, 90067. Its registered agent for receipt of service of

process recorded with the New York State Department of State is CT Corporation System, 111

Eighth Avenue, New York, New York 10011.

5. Defendants DOES 1 through 10 inclusive currently are unknown to Keck; as

such, Keck identifies those defendants in this action with fictitious names. Keck is informed and

believes that each of the defendants designated as DOES is legallyresponsible at least in part for

the events and actions constituting the conduct damaging Keck. Keck will seek to amend this

Complaint to identify and include the actual names and capacities of such defendants after Keck

has determined such data.

Jurisdiction and Venue

6. This Court has jurisdiction over the subjectmatter of this action pursuantto 28

U.S.C. 1331 and 1338(a) and 17 U.S.C. 501(a), as this action alleges infringement of

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registered U.S. copyright rights and other violations of the copyright laws of the United States,

17 U.S.C. \0letseq.

7. This Court has personal jurisdiction over FX Networks because it does business,

transacts business and/or is qualified to do business within the State of New York for all times

relevant to Keek's claims asserted in this action.

8. This Court has personal jurisdiction over Fox Home Entertainment because it

does business, transacts business and/or is qualified to do business within the State ofNew York

for all times relevant to Keek's claims asserted in this action.

9. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b)(1),

1391(c)(2) and 1400(a) because FX Networks and Fox Home Entertainment are subject to

personal jurisdiction in this district.

Facts

Michel Leah Keck and Her Original Works of Art

10. Plaintiff Michel Keck is a fine artist by profession. Since 2003, Keck has focused

her efforts toward earth-tone abstract painting, mixed media paintings and collages, and art using

recycled materials, among other media. Keck is a rare breed: the self-taught, self-represented,

successful and critically acclaimed artist. In 2006, Keck successfully opened her own online art

gallery www.michelkeck.com, as well as her own fine art publishing company. By the end of

2006, Keck sold over 1,500 original paintings to art collectors throughout the U.S., Canada,

Brazil, Japan, Australia, New Zealand, Netherlands, Ireland, Chile, France, Italy, Austria,

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Portugal, Greece, Norway, Malta, Puerto Rico and the United Arab Emirates. Keck has exhibited

originalabstract art paintings and mixed media assemblages in London, New York, Chicago,Los

Angeles, Dallas, Indianapolis, High Point, Pittsburgh, Lake Tahoe and Las Vegas. Keck is

regarded as one of the most successful self-representing artists working today, and she continues

to pave the way for self-representing artists worldwide.

11. Keck is and has been for all times relevant to the claims asserted in this action the

exclusive owner of all copyright rights in and to the original works of art reproduced and

attached to this Complaint as Composite Exhibit A. each of which is registered with the U.S.

Copyright Office effective on November 10, 2014: "Sink or Swim" (U.S. Copyright Reg. No.

VA 1-933-894); "The Best Is Yet To Come" (U.S. Copyright Reg. No. VA 1-933-895); and

"I Don't Want To Hear It" (U.S. Copyright Reg. No. VA 1-933-898) (collectively, the "Works").

The "specimen" watermark has been added for this Complaint exhibit to the copies of the Works.

A true copy of each copyright registration certificate is attached to this Complaint within

Composite Exhibit A behind each Work to which it pertains.

12. Keck is the sole author of each of the Works. For all times relevant to this action,

Keck owns and has owned all copyright rights in and to each of the Works since their creation.

Each of the Works is original to Keck, is a propersubject of protection under the U.S. Copyright

Act, and is protectedinternationally by valid and subsisting copyright rights.

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Defendants and Their Animated Television Series Archer

13. Defendants produce, broadcast and otherwise distribute the animated television

seriesArcher, an award-winning, critically acclaimed, wildly successful adult-oriented half-hour

spy workplace spoof comedy. Archer features its main character Sterling Malory Archer, a

suave, narcissistic, self-absorbed, caustic, sniping, womanizing James Bondtype, always witha

clever quip andcocktail in handnotwithstanding the grave perilshe faces while executing his

masterspy missions for the "International Secret Intelligence Service" (or "ISIS," as the show

calls it).

14. While tackling matters of geopolitical conflict and global espionage, Sterling also

must sort his profound unresolved mother issues, not in small part because that domineering

mother - Malory Archer - runs ISIS and is Sterling's boss. Archer'smother-son conflict is a

dominanttheme pervading the series. The show repeatedly pits these two central characters

against each other concerning Sterling's feelings of childhood abandonment, his flouting of ISIS

office rules directed to expense accountabuse and fraternization, Malory's unwillingness to

applaud Sterling for his indisputable master spy talents and achievements, and other matters

cultivated andcalibrated to leverage and amplify the show's irreverent, snarky tone.

15. TheArcher series exhibits a distinctive andreadily recognizable artistic design.

Characters' faces are based on the actual faces of actors and models. Sets are based on

photographs andother works of art. Theseries' design aesthetic juxtaposes camp character

illustration and animation against sophisticated, life-like sets. A 2014 interview withArcher's art

director and animation director provides a glimpse of how intricately andthoughtfully Archer is

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designed and produced. Quoted from that interview: "[T]he important thing about Archer is just

how it looks. [...] We wanted the backgrounds to have those lush painted textures." A true copy

of the interview is attached to this Complaint as Exhibit B (red text highlight boxes added at its

pages 4 and 6 for convenience).

16. To better understand how closely Archer's design aesthetic tracks its real-world

underpinning, compare the "before" and "after" Archer images pasted below. Note the

substantially identical color schemes, perspectives, wall tile arrays, sink shapes, faucet shapes,

mirror frames, mirror wall mount, and reflections of the sink, faucet, door frame and wall-

mounted hand soap dispenser. On information and belief, the Archer's inclusion of these

elements in the "after" image is a conscious, deliberate design choice.

17. Archer's ISIS headquarters are housed in well-appointed office space withina

commercial building in New York City, thoughtfully designed to accommodate the unusual

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needs of a spy agency. Ms. Archer's office is a primary Archer set, pervasively featured

throughout the first four seasons of the series. Episodes feature Malory's office as the place in

which Malory briefs her subordinates on the spies' missions, monitor operations, disciplines

misbehavior, andconducts sultry videoconferences withherclandestine, geopolitically incorrect

romantic interests.

18. Archer has grown from a cult phenomenon into a wildly popular show, expanding

its audience since the pilot episode's 2009 televisionpremiere. On informationand belief, it is or

has beenthe number one rated show on FX Networks among adults age 18-49 years.

19. Archer won the Critics' Choice Television Awards for Best Animated Series in

2012, 2013 and 2014. It also won the IGN People's Choice Award for Best TV Animated Series

in 2011. Archer has receivednumerous othernominations, including one for the 2014Primetime

Emmy Award for Outstanding Animated Program, and Annie Awards nominations in each of

years 2012,2013,2014 and 2015.

20. On January 8, 2015, Archer's season 6 premiere aired to an audience of

approximately 1.5 million viewers. In March 2014, Archer was renewed for a seventh season. On

information and belief, no plans have been announced to wind up production.

21. On informationand belief, Internetaudiovisual content streamingservices

Netflix, Hulu, and Amazon Primeprovide the 62 Archer episodes aired duringseasons 1-5 to

their respective subscribers for continuous, on-demand viewing, making the series episodes

highly and conveniently accessible to vastaudiences. Defendants also sellanddistribute copies

of those episodes to the general public on DVD format digital discs. Viacom's Comedy Central

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purchased off-network rights to the Archer series for broadcast via its cable channel scheduled to

begin in May 2015, which will further expand the reach of and audience for Archer.

Defendants' Unauthorized Uses of Keek's Works In Archer

22. In November 2014, Keck discovered that Defendants havebeenusing her Works

in Archer.

23. Ms. Archer's richly detailed ISIS office set features prominent framed paintings

that use the Works, orderivatives. True copies of screen captures derived from Netflix streaming

ofa representative Archer episode from each of the first four seasons are attached to this

Complaint as Composite Exhibit C.

24. Neither Keck nor anyone else authorized Defendants to usethe Works in any

form as part ofArcher.

25. Archer does not credit Keck as a contributor or otherwise.

26. On information andbelief, FXNetworks and Fox Home Entertainment operate

sophisticated media production and distribution businesses with trained staff and an excellent

working knowledge of copyright lawprinciples and rights clearance practices. Inexplicably,

Defendants used the Works as part ofArcher without even seeking thenecessary permission to

do so.

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FIRST CLAIM FOR RELIEF

Copyright Infringement

As against all Defendants

27. Keck repeats and realleges the allegations set forth in the previous paragraphs of

this Complaint as if fully set forth herein.

28. Without authorization or consent, Defendants created derivative works based on,

reproduced, publicly displayed,distributed, transmitted, and otherwiseused the Works as part of

Archer.

29. On informationand belief, Defendants knew that they did not possess any rights

to use the Works as part ofArcher or otherwise.

30. On information and belief, Defendants cropped, blurred and/or otherwise

manipulated the Works to conceal that those manipulated works were derived from Keek's

Works.

31. On information and belief, Defendants have received substantial benefits from

their unauthorized reproduction, public display, distribution, transmission and uses of the Works,

which contribute to the unique artistic appeal, look and feel ofArcher.

32. On information and belief, Defendants performed their wrongful acts willfully

and knowingly, with intentionaldisregard for Keek's exclusivecopyright rights in and to the

Works, and for the purposes of trade and profit, including by meansof the sale and licensing of

audiovisual content, merchandise and advertising services.

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33. Keck has been damaged by Defendants' unauthorized uses of the Works,

including without limitation in the forms of diversion of trade, loss of profits, dilution of the

value of rights in the Works, and erosion of the market value of the Works, in an amount to be

determined at trial.

34. Among other relief, such wrongful conduct entitles Keck to an award of a

permanent injunction against continued use, and actual damages suffered as a result of such

infringement,plus Defendants' additional profits attributable to such infringement, in an amount

to be determined at trial, plus recovery of its costs. 17 U.S.C. 504(a)(1) and 505.

To the extent that Keek's registration of copyright rights in and to the Works is timely, Keck is

entitled to opt for an award of statutory damages in an amount up to $30,000 (or $150,000 if

infringement is willful) per work infringed, and also is entitled to an award of a reasonable

attorney's fee.

SECOND CLAIM FOR RELIEF

Secondary Copyright Infringement




36. On informationand belief, Defendants knew and intended that third personsand

entitieswould take, reproduce, transmit, distribute, publicly display, and proliferate the Works as

part ofArcher without Keek's authorization or consent.

Page 10 of 17

37. On information and belief, because Defendants contributed to and induced third

person infringement ofthe Works and knew orshould have known ofsuch infringement, they

are liable for contributory infringement of the Works.

38. On information and belief, because Defendants had the right and ability to control

reproduction, transmission, distribution, public display, and proliferation ofthe Works as part of

Archer, which benefitted Defendants commercially, they alsoare liable for vicarious

infringement of the Works.


permanent injunction againstcontinued use, and actual damages sufferedas a resultof such

infringement, plus Defendants' additional profits attributable to such infringement, inanamount

to be determined at trial, plus recovery of its costs. 17U.S.C. 504(a)(1) and505. Totheextent

that Keek's registration ofcopyright rights inand to the Works is timely, Keck is entitled toopt

for anaward of statutory damages inanamount up to $30,000 (or$150,000 if infringement is

willful) per work infringed, and also is entitled toanaward of a reasonable attorney's fee.

THIRD CLAIM FOR RELIEF

Provision and Distribution of False Copyright Management Information (CMP




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41.17 U.S.C. 1202 (a) prohibits providing anddistributing false CMI: "No person

shall knowingly and with the intent to induce, enable, facilitate orconceal infringement - (1)

provide CMIthat is false, or (2) distributeor import for distribution CMI that is false.

42. 17 U.S.C. 1202 (b) prohibits removing or altering CMI and distributing CMI

knowing that it has been removed oraltered without the permission ofthe copyright owner:

No person shall,withoutthe authority of the copyright owner or the law

(1) intentionally remove or alter any copyright management information,(2) distribute or import for distribution copyright management informationknowing that the copyright management information has been removed oraltered without authority of the copyright owner or the law, or (3)distribute, import for distribution, or publicly perform works, copies ofworks, or phonorecords, knowing that copyright management informationhas beenremoved or altered without authority of the copyright owner orthe law,

knowing, or, with respect to civil remedies under section 1203, havingreasonable grounds to know, that it will induce, enable, facilitate, orconceal an infringement of any right under this title.

43. CMI includes "(1)the title and other information identifying thework, including

the information setforth on a notice of copyright, (2) thename of,andother identifying

information about, the author of a work, (3)the name of, andother identifying information

about, the copyright owner of the work, including the information set forth in a noticeof

copyright, and ... (6) the terms and conditions for use of the work." 17 U.S.C. 1202(c)(1),

(2), (3) and (6).

44. On information and belief, with the intent to induce, enable, facilitate and/or

conceal infringement, Defendants removed or excluded Keek's name, her Works' titles, andher

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copyright notices, and instead applied without authorization or consent or other right

Defendants' own copyright notices and claims.

45. On information and belief, withthe intent to induce, enable, facilitate and/or

conceal infringement, Defendantsprovidedand distributed false CMI with their unauthorized

reproduction, public display, distribution, transmission and uses ofthe Works as part ofArcher.

46. On information and belief, with the intentto induce, enable, facilitate or conceal

copyright infringement, Defendants knowingly provided and distributed false CMI when they

applied their own CMI to the Works (for example, the copyright notice), in violation of 17

U.S.C. 1202.

47. On information andbelief, knowing or having reasonable grounds to know that

Defendants would induce, enable, facilitate orconceal infringement ofexclusive rights under

Title 17 U.S.C, Defendants (1) intentionally removed oraltered CMI for the Works, (2)

provided false CMI for the Works (for example, by providing the FX Networks Copyright

Notice without authorization and consent), (3) distributed false CMI for the Works without due

authority; and (4) distributed and publicly performed and displayed copies of the Works with

false CMI without due authority, all inviolation of 17 U.S.C. 1202(b)(1), (2) and (3).

48. Such wrongful conduct damaged Keck in an amount to be determined at trial.


permanent injunction against continued CMI violations, and actual damages suffered due to such

violations, plus Defendants' additional profits attributable to the CMI violations (17 U.S.C.

1202(b)(3) and 1202(c)(2)), orifand as Keck opts in her sole discretion, statutory damages in

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an amount of up to $25,000 per CMI violation (17 U.S.C. 1203(c)(3)(b)), plus a reasonable

attorney's fee and costs (17 U.S.C. 1203(b)(4) and (5)).

Prayer for Relief

WHEREFORE, Keck respectfully requests judgment against each of the Defendants

as follows:

a. declaring Defendants liable for direct infringement of the exclusive

copyright rights in and to the Works;

b. declaringDefendants liable for contributory and vicarious infringement of

the exclusive copyright rights in and to the Works;

c. declaring Defendants liable for removal or alteration of CMI for the Works

and for provision and distribution of false CMI for the Works;

d. enjoiningDefendants from unauthorized reproduction, public display,

transmission, distribution and all otheruses of the Works, from providing and distributing

false CMI for the Works, and from removing or altering CMI for the Works;

e. for Defendants' direct, contributory and vicarious copyright infringement,

awarding Keckmonetary damages in an amount equal to her actual damages and

Defendants' additional profits attributable to such infringement, in an amount to be

determined at trial (17 U.S.C. 504(a)(1)), plus costs (17 U.S.C. 505), or if and as Keck

opts in her sole discretion to the extent that copyright registration of the Works is timely,

an awardof statutorydamages, and also an award of a reasonable attorney's fee;

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f. for Defendants' CMI violations, awarding Keck monetary damages in an

amount equal to her actual damages and Defendants' additional profits attributable to such

CMI violations, in an amount to be determined at trial (17 U.S.C. 1202(b)(3) and

1202(c)(2)), or if and as Keck opts in her solediscretion, statutory damages in an amount

of$25,000 per CMI violation (17 U.S.C. 1203(c)(3)(b)), plus a reasonable attorney's fee

and costs (17 U.S.C. 1203(b)(4) and (5));

g. compelling Defendants to account to Keck for all profits, income, receipts

andotherbenefits derivedby them fromthe reproduction, distribution, transmission,

public display, promotion, and sale of products, services and media that infringe copyright

rights in and to the Works (17 U.S.C. 504(a)(1) and 501(b));

h. compelling Defendants to account to Keck for all profits, income, receipts

andotherbenefits derivedby them fromtheir removal or alteration of CMI for the Works,

andfrom theirprovision and distribution of false CMI for the Works (17 U.S.C.

1203(b)(3) and 1202(c)(2)); and

i. awarding Kecksuchotherandfurther reliefas the Courtdeems just and

proper.

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Dated: New York, New YorkMarch 17,2015

Respectfully submitted,

^hua R. Bressler (JB8780)sler Law PLLC

3WeV35th Street, 9th FloorNew York, NY 10001Tel: (917) 969-4343Fax:(917)591-7111

Counselfor PlaintiffMichel Leah Keck

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DEMAND FOR JURY TRTAL

Plaintiff Michel Leah Keck hereby demands trial by juryof all issues sotriable

under the law.

Dated: New York, New YorkMarch 17,2015

Respectfully submitted,

JoshMR. Bressler (JB8780)Bressle^Law PLLC3 West 35th Street, 9th FloorNew York, NY 10001Tel: (917) 969-4343Fax: (917)591-7111

Counselfor PlaintiffMichel Leah Keck

Page 17 of 17

Sink or Swim

.g.wt.uU.vu

>?:). r-jads ;j r-i-.ri O: the Copyright Off!'.:;? ^-.ros'&s

Title ofWork: Sink or Swim

Regisfcratioa Number

VA 1-933-894Effective date of

registration:

November 10,2034

jwwmmwuww*m'

Year of Completion: 2008

Date of 1st Publication: April 20,2008 Nation of 1st Publication: United State

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* Author: Michel Leah Keck

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ghtciCopyright Claimant: Michel Leah Keck

271 East 400 Soutli,Valparaiso, IN, 46383, United States

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Address: 271 East 400 South


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HOME NEWS BLOGS ANIMATIONWORLD VFXWORLD EVENTS FORUMS JOBS MORE

Animating 'Archer'Art director Neal Holman and animation director Bryan Fordney explain how FloydCountyProductions brings us FX's animated gem.By DanSarto andJames Gartler | Monday, April 21, 2014at 10:21amIn2D,CG, People, Technology,Television | ANIMATIONWorld

Lana Kane (Aisha Tyler), Archer (H.Jon Benjamin) and Cheryl Tunt(Judy Greer) share a tense momentinthe fifthseason finale of Archer Vice.Copyright FX Networks.

Adam Reed's spyseriesArcher underwenta bitof a changethis season,withthe animated heroesforced bythe FBI to jettisontheir spybusiness in exchange for lives ofcrime and cocaine-selling.And country western musicproduction. As you can imagine, they've approachedthe crimebusiness withthe same bravado and dysfunction that they used to approach the spy business.Luckily, there're still thesame people keeping things running smoothly behind-the-scenes. FloydCounty Productions hasbeentherefrom the beginning, infact, andwith five seasons undertheirbelt - and two more still to come - art director Neal Holman and animation director BryanFordney practically havethe process down to a science. Overseeing a staffofsixty at theirAtlanta-based studio, the duo open up about their economicalapproach to keepingArcherand hiscrewlooking so darn good,using3Dsoftwareto create the 2D worldofAdam Reed's hilariouslytight scripts.

Watch the fifth season finale, "Archer Vice:Arrivals/Departures," tonight, April 21st at 10pm on FX.Latest AWN Must Reads

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Ai Cher and the rest uf the ISISgang ai e the guests of GustavoCaldcron(FredArmisen)and his wifeJuliana(Laui enCohan).Calderon is a bigfan of Charlene butJuliana is a biggerfan Df Archer.

Dan Sarto: Tell me a little bit about how this wonderful series comes together. What are yourroles and what's your production pipeline like?

Neal Holman: Archer is not your average cartoon. Weworkvery, very quickly and the departmentheads and production heads haveallworked together for so longthat our process is reallystreamlined. Ascript iswritten and then things start to sort of branch outward. I will startworking with the storyboard team and while they'rebusystoryboarding a scene, my associate artdirector Chad Hurdand I will be designing backgrounds and then workingwith our characterdesigners. Atthe same time, we're workingwith our 3Ddepartment helpingto buildthebackground designs into3Denvironments. Onthe other side of the track, the producersarecastingand doingthe voicerecordingwith our actors. By the time they are done with an audioedit, we will have storyboards to put to their audio and then pass that off to our illustration andbackground directors. That'swhenthey start building Archer in a junglesuit or Archer inatuxedo. The background department will be painting over renders from our 3Denvironments.Bryan takesall ofthese elementsand the animaticwith audioand he'll line up all ofthe elementsto go with it and begin animating and compositing.

Bryan Fordney: Another unique thing about the Archerpipelineis that the animation process isactually done separate from the drawing. Thedrawings are done based on the storyboardsandthe illustrationdirector also sort of directs drawing sequences. We use Adobe After Effects for thecharacter acting, whichisalmost more similarto 3Danimation than it is to traditional animationbecause we are essentially creating rigs, like3Dcharacter puppets, but we are doing it in 2D. Thatallows us to workveryquickly and it allows us to add varioussubtleties that we wouldn't be able todo with traditional animation.

Pam Poovey(AmberNash)makes a deal that puts everyone in danger.

DS:So the backgrounds are done using 3D software tools?

NH: Yes. The waywe get a design going is Chad Hurd and I will work on something that we thinkbest suits the needs of the scripts and the aesthetic that Adam is going for in his scene. We'llgethis thoughts on it and once a design is locked, we give it to our 3D team and they build thatenvironment. Once it's built, we can put our camera anywhere inside it and kickout a render and

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then pass itonto ourbackground team,ourpainters, who pain over that render. So, it'snotjustan out-of-the-box render that goes straightto television. It goes throughour paintersfirst so itlooks more like a paintingthan it does a stale 3Drender.

DS: Now,am I mistaken or is some of the 3D animation done somewhere else in the Midwest?

BF: Trinity Animation does a lot of3Dworkwithus, like the 3DenvironmentbuildsI'mtalkingabout. Werelyon them pretty heavily. They're at Lee'sSummit, Missouri.

RayGillette(Adam Reed)and Krieger(Lucky Yates)move some dangerous cargo.

DS: What program do you use for the 2D characters?

NH: Adobe Illustrator is where we're building all of the elements for the character rigs. We'll drawArcher standing in a tuxedo, but that one illustration of Archer in his tuxedo is split up into severaldifferent layers, so that his hand is on a layer, his forearm is on a layer, his bicep is on a layer, etc.In After Effects, we'll linkthose three layers together, so that when I move the bicep, the forearmand the hand move with it. It becomes like a puppet rig.

BF:The heads themselves are like a whole other beast, though. When we draw on a body, we puta dummy head on it because the actual head is a really complicated rig that takes a long time todevelop and we stick on everybody that we draw.

NH: It's all about economy and getting the most of what you are doing. There's a lot of smokeand mirrors. Wetry to make it looklikea lot of animation, but we're very economical. Ifwe aregoingto builda head then that head rig is going to be reallygood. We'll build it once and use itthroughout the year. Weare tryingto use everybit of everythingand nothing reallygoes away.Any bodythat Archer is drawn in, likea suit or polo shirt or whatever, you will see repurposed ondrones in the background throughout the season. Nothinggoes to waste here with ourillustrations and our rigs!

11 k pi ii lu n,l" |-ik iar Cyril Figgis (Chris Parnell)and Ray.

DS:But on the flip side, when you look at the finished episodes, it doesn't look like a minimalistvisual presentation. It looks very stylized.

NH: That's the goal.

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Fudge

Season 7 airs in March something. We should begettig a trailer either next week or the week afterRainbow and Nickelodeon Announce 'Winx Club' Season

Seven

*S**!:w^ Letting artists do art...

Bonnie is the single best producer atDreamworks today. Too bad the other producersare too ego-maniacal to learn from her. She's

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BF: There has tobea balance, but we really do feel like theimportant thing about Archer isjust Ihow it looks. I

DS: Right, right. He isall about his looks! Turning thesubject toAdam Reed for a second, does hesend you a finished script and then you work with him onthecreation ofthestoryboards?

BF: We usually geta script that isn't quite locked, butnotfarfrom it. When he's ready to get FX'sresponse, that's thedraft we getandstartbuilding from. Adam isjustsuch a strong writer thatwecan go ahead and startmoving forward with themajor builds. And after that, once we have donea pass ofAct One, wewill send him a PDF ofthestoryboards along with some notes toguide himthrough itandhe'll sendback whatever feedback hehas. After all theseseasons, I have a prettydecentidea ofwhatAdam isgoing forwhenhe writes a scriptor a scene, so the noteshavebeenpretty minimal.

There isanother storyboard revision afterweadd inthe audio. In mostshows, storyboard goesstraight to audio andthatisa luxury thatwe don't have because ofourschedule. We generallyfinish storyboards fora full episode intwo weeks and two days, andthat'smoving really quicklyforfour people. Sometimes when the audio comes in, an actor's read will be much different thanhow wewerereading itwhen weweredoing the boards, sowe have to make revisions. Oneofthebest thingsabout our production isthat we canturn on a dimeand still keepthingsmoveprettyfluidly.

NH: Also, wedon'tjuststartoneepisode, work it until it isdoneandthenstartanother - theyareall overlapping invarious stages. So, while oneepisode isbeing written, the previous episode isbeing storyboarded and the episodebeforethat is being built andthe episode beforethat is beinganimated. We generally havefour or sometimes five episodes going in production at one time.

Cheryl is more than a matchfor a group of bikers.

DS: What's the total timeframe for the production of an episode?

NH: I think it's ten weeks, is that right Bryan?

BF:Yes, that sounds about right.

DS: Do you do the post yourselvesat Floyd CountyProductions?

NH: Astrangethingabout this showis that the postworkis done inAfter Effects, the sameprogram that we use to do the character animation.

BF: Theediting isdone in Final Cutbyan editor,but we often haveto makeadjustments inAfterEffects for timing and everything.

NH:The onlything that's really not done in-house is the recording and audio mixing.

confident enough in her own skin to let othersdo what they were...

Bonnie Arnold Talks'How to Train Your Dragon 2'

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ADVANCEMENT IN ANIMATION WRmNG

Could it have been a browser issue? We didn't

receive any other reports about the feed notworking properly, but we're sorry you weren'table to watch the show!

Wau:h ihe 42 nd Annual Annie Awards Live!

Amazing1 Congratulations to Everybody,especially all Those Employees from PDI.Your Contributions were well Worth-It.:)

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AllIranian Animators have boycotted thisFestival. Everyone knows it's PERSIAN GULF, Idon't know what's with these Arab countries?!!

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Theunflinching voiceof reason - Malory Archer(Jessica Walter).

DS: Adam Reed told me recently that the team at Floyd County regularly managesto makethegags in the script so muchfunnier than he ever imagined...

NH: Well, one example that comesto mindis episode402,1think...the one with Lucas Troy, whowas Timothy Olyphant last season....

DS:Oh, yes, his close buddy...

NH: ...Archer's best friend. That episode ends with a just a silent shot of Archer, Lanaand the car.Thecomedy in it comesfromArcher's facial expression - that tellsthe wholestory. Wejust stayontheirfaces as theythinkaboutthe horrorsthey've justgonethrough. Itwas kind offunny inthe script, butjustseeingthe wayBryan's team really soldthat makes it standout in my mind asone of the best examples of our character acting.

BF: Yeah, the cool thingabout that was it was the laststep in the production. Oneof ouranimatorsjust decided, "OhI'mgoingto makethese really hilarious frowny faces on thesecharacters at the very end." It reallywasn't planned out that way.

NH: Becausewe havesuch talented improvactors on our cast, I think a lot of people believetheshow is primarily improv and I'd say...95% of it iswritten. What seem like improvised jokesareactually writtenon the pageand that speaksto Adam's natural talent as a writer. Heis reallyincredible. We're a littlespoiledin that weget Adam Reed scriptsevery two to three weeks. Whenwe have to shift and work on other projects, I always hold [the other writers] to that samestandard and there is alwaysa disconnect at first, because they are not Adam.

BF: There is a real confidence in the scripts. Like, ifwe are confused partwaythrough theproduction because, "This joke justisn't working," andthenwelook back at thescript we're like,"Oh. That's because we didn't do it by the script!"

Archer takes a break from love making and narco-trafficking...but only for a short while.

DS:The stuff is brilliant on a lot of different levels. I think the visual design of this show sobeautifully complimentsthe tone and the comedythat I cannot think of another visualstyle thatwould make it any better.

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NH: Yeah. Whenwe were doingthe pilotwe wanted something with reallybold linework,thickheavy lines. Wejust didn'twant to looklike another Family Guy or Simpsons. Alot of the cartoonsthat we were seeing had this razor thin line work and that's not to knock those cartoons - it wasjust something we didn't reallywant to followsuit with. Wewanted something that would bedifferent and give a more graphic appeal to the characters. We wanted the backgrounds to havethese lush painted textures. At first it was lookingmore likea '60s comic book but it has sort ofmorphedfrom there.

DS: Last question - what are the biggest challenges you face day-to-day and week-to-week inbringing Archer together?

NH:Some of it is dealing with how best to do really cinematic sequences with limited animationand limited time. That is something I actually really enjoy because it gives you constraints to workagainst. Wedefinitely don't have an unlimitedbudget and we definitely don't have unlimitedtime...but we swing for the fences in our storyboards and really try to make the biggest, baddestcar chase we can and then boil that down into logistical elements that we can actually do. It's onething to board a giant fight scene and it's quite another to plan it out to where you can do itwithout killing all of your animators.

BF:Yeah, and on these big action episodes, you're really trying to find a balance between theaction-packed sequences and the natural comedy of the voiceover work, which is the core of theshow. With normal episodes, that just comes along naturally, but when we get to these crazyepisodes with tons of adventure, it's vital to find a balance.

Dan Sarto is Publisher and Editor-in-Chief of Animation World Network.

James Gartler is a Canadian writer with a serious passion for animation in all its forms. Hisworkhas appeared in the pages of Sci FiMagazine, and at the websites EW.comand Newsarama.com.

^Tags Archer Floyd County Productions FX TV Animation

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