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Case 2:10-cv-05074-RRM -CLP Document 18

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK STUHRLING ORIGINAL LLC, Plaintiff, v. AARON FUHRMAN D/B/A ZEITLOS IMAGERY, Defendant.

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Case No. 10-CV-5074 (RRM) (CLP)

FIRST AMENDED COMPLAINT Plaintiff STUHRLING ORIGINAL LLC, by its attorneys, MURTHA & MURTHA, PLLC, as and for a first amended complaint against defendant AARON FUHRMAN D/B/A ZEITLOS IMAGERY herein, alleges and sets forth as follows: INTRODUCTION 1.

This is a civil action by plaintiff STUHRLING ORIGINAL LLC seeking

declaratory relief in the form of a judgment resolving all issues involving the plaintiff's right to use photographs and images of its products created by defendant AARON FUHRMAN D/B/A ZEITLOS IMAGERY at the request of the plaintiff and under an agreement therewith; affirming the plaintiff's license for the right to use any and all said photographs or images created by the defendant under said agreement; refuting and permanently extinguishing the defendant's baseless assertions of copyright infringement finally and definitively; and granting an injunction enjoining the defendant from enforcing his copyrights against the plaintiff, its agents or assigns.


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This action also seeks to recover damages from defendant AARON FUHRMAN

D/B/A ZEITLOS IMAGERY for breach of contract, for breach of the implied covenant of good faith and fair dealing, and for defamation per se for having intentionally published to a third party untrue and defamatory statements about plaintiff STUHRLING ORIGINAL LLC, its officers and members. JURISDICTION AND VENUE 3.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 with respect to the

plaintiff's claim for declaratory relief herein, because the said claim arises under 17 U.S.C. § 101 et seq., a federal statute. 4.

This Court also has jurisdiction pursuant to 28 U.S.C. § 1338 with respect to the

plaintiff's claim for declaratory relief herein, because the said claim arises under an Act of Congress, i.e., 17 U.S.C. § 101 et seq., the Copyright Act, and the declaratory relief is sought based upon a license or assignment of copyright; and the plaintiff is asserting a claim requiring construction of the Copyright Act. 5.

This Court has further jurisdiction with respect to the plaintiff's claim for

declaratory relief herein under New York's long-arm statute, N.Y. C.P.L.R. § 302, because the defendant purposefully availed himself of the State of New York and had substantial contacts therewith by having transacted business within New York and by having contracted to supply goods or services in New York; and the defendant expects or should reasonably expect his acts, of which the plaintiff complains herein, to have consequences in New York and the defendant derives or derived substantial revenue from interstate or international commerce. 6.

This Court has jurisdiction pursuant to 28 U.S.C. § 1332 with respect to all of the

plaintiff's claims herein because the plaintiff is a limited liability company organized under the


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laws of the State of New York with its principal place of business in the State of New York; the defendant is a citizen of the State of Missouri; and the amount in controversy, without interest and costs, exceeds the sum or value specified by id. ยง 1332(a). 7.

This Court specifically has jurisdiction with respect to the plaintiff's claims of

breach of contract, breach of the implied covenant of good faith and fair dealing and defamation per se herein because the said claims are so related to the plaintiff's claim for declaratory relief that they form a part of the same case or controversy under Article III of the United States Constitution. 8.

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

the events or omissions giving rise to the claims herein occurred within the Eastern District of New York. 9.

Venue is also proper in New York, because the courts of the State of New York

would be the appropriate venue under New York's long-arm statute, N.Y. C.P.L.R. ยง 302, with respect to the plaintiff's claims of breach of contract, breach of the implied covenant of good faith and fair dealing and defamation per se herein, were those claims to stand alone and not be joined with the plaintiff's claims under the Copyright Act, because the defendant transacted business within New York and contracted to supply goods or services in New York; and the defendant expects or should reasonably expect his acts, of which the plaintiff complains herein, to have consequences in New York and the defendant derives or derived substantial revenue from interstate or international commerce. 10.

Venue is also proper with specific respect to the plaintiff's claim for declaratory

relief under N.Y. C.P.L.R. ยง 302, because New York is the situs of the original event, i.e., the alleged infringement of the defendant's copyrights; and because were the defendant to initiate a


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civil action against the plaintiff to enforce any copyrights related to this matter, the proper venue for such an action would be the Eastern District of New York because the plaintiff herein is a limited liability company organized and existing under the laws of the State of New York with a principal place of business therein; and because a substantial part of the events or omissions that would be alleged to have given rise to such an action would be alleged to have occurred within the Eastern District of New York. THE PARTIES 11.

The plaintiff, STUHRLING ORIGINAL LLC (hereinafter referred to as

"Stuhrling"), is a limited liability company organized on November 6, 2002, under the laws of the State of New York, which maintains a principal place of business at 449 20th Street, in Brooklyn, New York. 12.

Stuhrling is a designer, manufacturer and seller of watches, which is renowned for

its stylish and high-quality brand of watches. 13.

Stuhrling's many models, types and styles of watches are very popular among

aficionados and collectors of watches. 14.

Stuhrling's brand of designer watches is marketed and sold to the public primarily

on the Internet and on the popular television shopping network, ShopNBC, in programs featuring Larry Magen, Stuhrling's President for North American Operations. 15.

Stuhrling's reputation depends, in large part, on the comments, opinions and

reviews of watch collectors and aficionados published in various electronic forums, including those on the Internet; and Stuhrling's sales are directly affected by such publications.


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The defendant, AARON FUHRMAN (hereinafter referred to as "Fuhrman"), is a

natural person of approximately thirty-five (35) years of age and a citizen of the State of Missouri, who resides at 318 Ellis Avenue, in New Florence, Missouri. 17.

Fuhrman, who also refers to himself as "Furdog," is a photographer who does

business as ZEITLOS IMAGERY. 18.

Fuhrman specializes in taking photographs of watches and maintains a website on

the Internet, and often blogs with others about watches and his photographs on such forums as WatchGeeks and Facebook. 19.

Fuhrman has registered copyrights bearing registration numbers VA 1-728-494,

VA 1-728-496 and VA 1-728-497. FACTS COMMON TO ALL CAUSES OF ACTION 20.

On or about June 25, 2010, Larry Magen (hereinafter referred to as "Magen"),

Stuhrling's President for North American Operations, hired Fuhrman to photograph seven new models of its watches for use in promotional campaigns in connection with upcoming national broadcasts on the ShopNBC network. Fuhrman had contracted with Stuhrling in the past to create photographs of Stuhrling's watches and deliver them to Stuhrling in New York and, although Stuhrling's ownership had considered Fuhrman's work to be mediocre at best, Magen continued to employ Fuhrman because the two had developed a friendship. 21.

Under the parties' agreement, Fuhrman would provide ten images of each of the

seven models of watches provided to him (a total of seventy images) for Stuhrling to use in its promotional campaigns; and Stuhrling would pay Fuhrman the sum of one thousand four hundred dollars ($1,400.00) upon completion.


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The parties also agreed that Fuhrman would provide ten images of one particular

watch model, the "Winchester," within one-week's time, as Stuhrling had a promotional deadline to meet in connection with its ShopNBC broadcast. Specifically, the images had to be delivered to ShopNBC for a newsletter, which was to be circulated by e-mail distribution. 23.

On June 29, 2010, Fuhrman received the seven watch models from Stuhrling to

begin photographing them. 24.

On July 6, 2010, after the one-week deadline for completion had passed, Magen

telephoned Fuhrman, and reminded him of their contract, and expressed the urgency that the images of the "Winchester" model be delivered immediately, as Stuhrling had a July 8, 2010, deadline to provide those images to ShopNBC for use in its newsletter. 25.

Fuhrman apologized and informed Magen he would have the images posted for

Stuhrling's use by the following day. 26.

On July 7, 2010, Fuhrman uploaded only six of the ten images of the

"Winchester" model for Stuhrling to use by its deadline and a few images of another model for possible use in the ShopNBC newsletter, and provided Magen with a password to access them. 27.

That same day, Magen informed Fuhrman via e-mail that the images provided of

the additional model were of such poor quality that he would be unable to use them in the ShopNBC newsletter, and requested that the four remaining images of the "Winchester" model be furnished before the July 8, 2010, newsletter deadline. 28.

Approximately one hour later, Fuhrman informed Magen via e-mail that the

additional images were available online. However, Fuhrman only posted three additional images instead of the four that were required.


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On July 8, 2010, Magen attempted to contact Fuhrman via telephone. Fuhrman

did not answer, and did not return Magen's call. 30.

On July 8, 2010, prior to business closing, Stuhrling's graphics designer was only

able to use two of the nine images provided by Fuhrman in its ShopNBC newsletter deadline. 31.

On July 8, 2010, at 11:33 PM, Fuhrman sent Magen an e-mail informing him that

Fuhrman did not have the opportunity to take any additional photographs that day, and would be unavailable the following day to finish the photographs, despite being well aware that the deadline for the contract had expired two days prior. 32.

On July 9, 2010, Magen once again informed Fuhrman that he is in breach of

contract. Fuhrman responded by informing Magen that Fuhrman has canceled his travel plans, and will instead devote his day to fulfilling his obligation to Stuhrling. 33.

On July 9, 2010, Magen instructed Fuhrman via e-mail to just complete the

remaining photographs of the "Winchester" model and return the rest of the watches to Stuhrling, as Fuhrman had "dropped the ball." 34.

Fuhrman responded via e-mail by apologizing for failing to meet Stuhrling's

expectations in this matter, and for failing to deliver his end of the bargain in a timely manner, and complained of the little amount of money he stood to make for failing to finish the remainder of the photos, despite the fact that it was Fuhrman's lack of performance that led to the degradation of the agreement. 35.

Magen responded by reiterating the terms of their contract, expressed outrage that

Fuhrman seemed to want more money to perform his duties under the agreement, and that Fuhrman "completely mishandled the job." Magen requested that Fuhrman immediately cease all performance, and return all remaining watches.


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On July 12, 2010, after failing to receive a final invoice for the photographs

provided to Magen for use in Stuhrling's promotional e-mail, Magen logged into Fuhrman's website and attempted to pay for the photographs with a credit card to end their business relationship. Magen's payment, however, was rejected by Fuhrman. 37.

On July 12, 2010, Magen sent Fuhrman an e-mail requesting the opportunity to

make the final payment for the few images that Fuhrman provided and that Stuhrling had previously used, in an attempt to finalize their business relationship. 38.

Fuhrman responded to Magen's e-mail by revoking all prior and future permission

to use the images he created for Stuhrling, including those already used by Stuhrling in its promotional campaigns, and by informing Magen that his images are "no longer for sale." 39.

Shortly thereafter, Magen and Stuhrling were contacted by an intellectual

property attorney representing Fuhrman, who demanded payment of four hundred fifty thousand dollars ($450,000.00) for the prior use of Fuhrman's images in Stuhrling's ShopNBC promotional e-mail newsletter. 40.

At that same time, Magen was also contacted by an associate in the watch

industry, who informed him that Fuhrman was defaming Magen and Stuhrling on the Internet. 41.

On September 22, 2010, Fuhrman sent an e-mail to Magen, and again confessed

that Fuhrman knew he was "slipping by a few days" with respect to his performance, but stated that he was willing to share his photographs and freely distribute them to everyone to promote the sale of Stuhrling's watches, but he found Magen's July 9, 2010, e-mail expressing outrage at Fuhrman's lack of performance degrading and he felt cheated. Fuhrman admitted that he hired a lawyer and posted defamatory statements on the Internet in an effort to get Magen's attention.


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On September 23, 2010, Magen responded to Fuhrman via e-mail, and reiterated

the terms of the original contract, confirmed Fuhrman's knowledge and approval of the use of his images in the July ShopNBC promotional newsletter, and again requested to make payment to Fuhrman, and even agreed to a slightly higher payment amount in an effort to put this matter behind them. 43.

Shortly thereafter, Magen and Stuhrling were contacted by Fuhrman's attorney,

who this time informed Magen and Stuhrling that if Fuhrman did not receive one hundred fifty thousand dollars ($150,000.00) for prior use of Fuhrman's images, Fuhrman would file a copyright infringement lawsuit against Stuhrling, Magen and ShopNBC. 44.

At that same time, Fuhrman telephoned Chaim Fischer, the CEO of Stuhrling, and

informed him that if he fired Magen, Fuhrman would not file suit, and would instead give Stuhrling permission to use his photos for free. 45.

As a result of Fuhrman's conduct, Stuhrling and Magen now live under the

constant threat of having a lawsuit filed against them. 46.

Such a lawsuit would be devastating to the business relationship between

Stuhrling and ShopNBC. THE COPYRIGHTS AT ISSUE 47.

The copyrights at issue herein were registered by Fuhrman in the Copyright

Office and bear the registration numbers VA 1-728-494, VA 1-728-496 and VA 1-728-497; and any reference herein to Fuhrman's copyrights are intended to mean those specific copyrights. REQUEST FOR DECLARATORY JUDGMENT 48.

Stuhrling repeats, reiterates, realleges and incorporates by reference, as if fully set

forth herein, each and every allegation in paragraphs 1 through 47 above.


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An actual controversy exists, in that Fuhrman's conduct has created a real and

reasonable apprehension of liability on the part of Stuhrling, and Stuhrling has engaged in a course of conduct which has brought it into an adversarial conflict with Fuhrman.

The

aforementioned communications from Fuhrman's lawyer discussed above herein serve as further confirmation of these facts. 50.

By reason of the conflict with respect to a license to use Fuhrman's copyrighted

images, Stuhrling requests that this Court adjudge: a. that Stuhrling's prior use of Fuhrman's photographs did not violate his copyrights or intellectual property rights; b. that Stuhrling was lawfully entitled to use Fuhrman's photographic images in its promotional materials, as Fuhrman, by his words and conduct, issued a license to Stuhrling to do so; c. that Fuhrman be enjoined and restrained from instituting any action against Stuhrling, its agents or assigns, including ShopNBC, for the use of said images; d. that, if the Court shall determine that usage of the photographs was not properly licensed or assigned to Stuhrling, that Fuhrman be required to settle his claim by accepting payment in full for the rights to the images in accordance with the parties' contract, and that Stuhrling and all other parties be discharged from all liability; and e. that Stuhrling recover its costs. AS AND FOR A FIRST CAUSE OF ACTION: BREACH OF CONTRACT 51.

Stuhrling repeats, reiterates, realleges and incorporates by reference, as if fully set

forth herein, each and every allegation in paragraphs 1 through 50 above.


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Stuhrling and Fuhrman entered into an agreement wherein Fuhrman agreed to

produce photographic images of Stuhrling's watches for Stuhrling's promotional use within a specified timeframe in exchange for payment. 53.

Fuhrman affirmatively accepted and agreed to Stuhrling's terms, and Stuhrling

relied on Fuhrman's acceptance. 54.

Stuhrling fully performed all of its duties and obligations under the contract,

including by offering payment to Fuhrman, which was refused by him in further violation of the terms of the agreement between the parties. 55.

Fuhrman has failed to perform his duties, covenants and obligations required of

him in accordance with the terms of the agreement. 56.

Fuhrman, through his actions as set forth above, has knowingly, willfully,

repeatedly and systematically breached his contract with Stuhrling. 57.

Fuhrman's breach of contract directly and proximately caused and continues to

cause Stuhrling irreparable harm and injury. 58.

The impairment of Stuhrling's ability to display the subject images of its new

models detrimentally impacted the sale of its new collection of watches. 59.

Stuhrling is entitled to actual damages, compensatory damages and punitive

damages as permitted by law in an amount to be determined at trial. AS AND FOR A SECOND CAUSE OF ACTION: BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 60.

Stuhrling repeats, reiterates, realleges and incorporates by reference, as if fully set

forth herein, each and every allegation in paragraphs 1 through 59 above. 61.

By retroactively revoking the license he granted to Stuhrling to use his images,

after Stuhrling had relied on them and used them in its advertising, Fuhrman intentionally and


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overtly injured or destroyed Stuhrling's right to receive the fruits of its contract with Fuhrman, i.e., the right to use the images free from the ever-looming threat of not only having to defend against a false claim of copyright infringement, but of having to indemnify and possibly lose, its primary avenue of distribution, ShopNBC. 62.

By retroactively revoking the license he granted to Stuhrling to use his images,

after Stuhrling had relied on them and used them in its advertising, and then threatening Stuhrling with frivolous litigation in an effort to cause Stuhrling to pay him a large and unearned sum of money, Fuhrman intentionally and directly impaired the value of his contract with Stuhrling to the extent that Fuhrman's overt acts were inconsistent with the intent of the parties. 63.

By retroactively revoking the license he granted to Stuhrling to use his images,

after Stuhrling had relied on them and used them in its advertising, Fuhrman violated Stuhrling's presumed or reasonable expectations, which arose out of the agreement between the parties, i.e., that Stuhrling would have the unfettered right to use Fuhrman's images in its advertising without fear of frivolous litigation. 64.

Clearly, Fuhrman breached the implied covenant of good faith and fair dealing by

overtly and intentionally directly impairing the value of the contract for Stuhrling to the extent that it may be assumed that Fuhrman's actions are inconsistent with the intent of both Stuhrling and Fuhrman; that Fuhrman's actions had the effect of destroying or injuring the right of Stuhrling to receive the fruits of the contract; and that Fuhrman intentionally, by his conduct, violated Stuhrling's presumed or reasonable expectations, which arose out of the agreement entered into between the parties. 65.

Fuhrman has breached the covenant of good faith and fair dealing by his bad faith

acts and unfair dealing with Stuhrling.


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The actions taken by Fuhrman directly and proximately harmed Stuhlring, and

Stuhrling continues to suffer harm to its reputation and goodwill. 67.

Stuhrling is entitled to injunctive relief, compensatory damages and punitive

damages as permitted by law in an amount to be determined at trial. AS AND FOR A THIRD CAUSE OF ACTION: DEFAMATION PER SE 68.

Stuhrling repeats, reiterates, realleges and incorporates by reference, as if fully set

forth herein, each and every allegation in paragraphs 1 through 67 above. 69.

On Thursday, September 2, 2010, Fuhrman published a statement on the Internet,

on the popular website known as Facebook, entitled, "Copyright Infringement." On Monday, September 20, 2010, Fuhrman published another statement on that same website entitled, "Stuhrling Original and Larry Magen," which Fuhrman makes clear in his preface "is continued from [his] note titled 'Copyright Infringement'." 70.

Fuhrman's "Copyright Infringement" statement published on September 2, 2010,

contains the following text: In July of this year a company used three of my images in an advertisement. They did so after I withheld permission to use these images. I withheld permission because the individual I was working with sent an email that was unprofessional and vulgar. I no longer wanted to be associated with this company after receiving this email. The images were first downloaded without payment which is a violation of the license agreement attached to each of my images. They were then placed in an advertisement proof and distributed around the internet as a sneak peek to the upcoming advertisement. Less than a week later the images appeared in a national newsletter. This was two and half days after I withheld permission and six days after the images were displayed in several locations around the internet as a proof for the advertisement.


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While the company proceeded to use my images to promote their sale I applied for received copyright registrations for each of the three images. This attaches a heavy fine for the use of these images. In the time it took to receive my registrations, one month, I heard nothing from the company using my images for their financial gain. I forwarded my copyright registrations to my attorney who sent a settlement letter to the company who infringed on my copyright. During the two week deadline, which ended this past Tuesday, we heard nothing out of the company. Not even an attempt to negotiate or make this right. Considering that one of the last communications I received from this company was vulgar and degrading to me personally, and that no further effort to communicate has been made, I'm left with no other choice. I must take the next step and see that they are held responsible for their actions. I don't like this, but it is clear this company and the individual I was working with couldn't care less about making this right. I wrote this note today to get some of this off my chest. I don't like being taken advantage of and even worse being ignored as if I don't matter. I will see to it that this is made right and will do so publicly if need be. I did nothing wrong and have no reason to hide. My fee for the use of these images was very small and should have been paid when they were downloaded as my license agreement outlines. To further use my images after I withheld permission is disgraceful. To ignore me is a mistake. 71.

Fuhrman's "Stuhrling Original and Larry Magen" statement published on

September 20, 2010, contains the following text: This note is continued from my note titled "Copyright Infringement". Please read that note first to understand the circumstances. I have let this bother me and distract me too long. I had hoped to reach a settlement agreement with Stuhrling Original for their use of my work, three photographs, without payment and against my wishes. That doesn't look possible as they have shown me no respect by not replying.


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I would pursue this to my own injury in the name of justice. However, I have a family to think about and I don't believe it is in their best interest for me to be distracted from their needs any further. Larry, in my own opinion, falls short of the professional persona he tries to project on air. For those who are not aware he sells watches on ShopNBC. Larry first downloaded my work and began sharing it for the gain of his company. Downloading any photograph from my site without first paying is against the licensing agreement, something Larry agreed to several times prior. He followed that by sending me an email that was degrading, vulgar and was at times shouting obscenities at me with the use of all caps. After receiving that email I made it clear I no longer wanted to work with him or Stuhrling Original. At that time I withheld permission to use my work and made it clear it was not for sale. This did not stop Stuhrling from forwarding my work, within a newsletter, to ShopNBC to be distributed through their system. The promotion was for a watch that sold nearly 6000 units in one day during a TTV (Today's Top Value) on ShopNBC. The gross profit for the day on that one watch was well North of $300,000 and was closing in on $400,000. Despite this, and no doubt other profits from the sale of other models, Stuhrling cannot see fit to pay me for my creative work. Work which I own Copyright Registrations for. I write this note for two reasons. The first is to let go and move on myself. The second is for any of my friends who collect watches. I am of the mindset that the people behind the company are just as important as the product they put out. If those people are less than genuine and put on a false persona to reach in your wallet and take some cash you should know it. As it stands Stuhrling Original has, to some degree, made a profit from my work without paying me. They appear to be avoiding this hoping it will go away. Where is the integrity of that? I laid awake last night wishing I had never been contacted by Larry. I've allowed his degrading email to eat at me. I've allowed his venom to soak into my mind and take hold. There is only one way to shake that and it involves letting him off the hook. That sucks!


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Larry Magen and Stuhrling Original took advantage of me and I'm going to walk away the bigger person. Well, not that much bigger . . .I have lost 25lbs! ;-) That is all. 72.

All of the statements published by Fuhrman, the text of which is quoted above,

are materially false. For example, Fuhrman claims that "in July of this year [Stuhrling] used three of [his] images in an advertisement" and "did so after [he] withheld permission to use these images." Fuhrman, Copyright Infringment, Sept. 2, 2010. This is a false statement. In fact, Fuhrman was hired to create ten photographs for a specific advertising purpose, but created only nine instead. Of those, only two were ultimately usable to Stuhrling, which used them under a license granted by Fuhrman. 73.

Fuhrman further claims that "[he] withheld permission because the individual [he]

was working with sent an email that was unprofessional and vulgar." id. This statement is also false. In fact, the e-mail exchange to which Fuhrman refers, ensued well after the images were used by Stuhrling pursuant to its license. 74.

Moreover, it was Fuhrman who first contacted Stuhrling.

Larry Magen,

Stuhrling's President for North American Operations, went out of his way to help Fuhrman by convincing the ownership of Stuhrling to give Fuhrman a chance to take some photographs of Stuhrling's watches, when it was the opinion of Stuhrling's ownership that Fuhrman's photographic skills were substandard or mediocre at best. 75.

As a further example, Fuhrman stated that "[d]ownloading any photograph from

[his] site without first paying is against the licensing agreement, something Larry [Magen] agreed to several times prior." Fuhrman, Stuhrling Original and Larry Magen, Sept. 20, 2010. This statement is false. In reality, the licensing agreement between Fuhrman and Stuhrling


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provided that Fuhrman would furnish photographs for Stuhrling's approval and, if Stuhrling chose to use any of them it could do so. The agreement further provided that thereafter Fuhrman would send Stuhrling an invoice for the images used, which Stuhrling would be obligated to pay. 76.

Furthermore, Stuhrling attempted to pay Fuhrman for the images it used, but he

refused payment, instead opting to pursue the aforementioned course of conduct. 77.

All of the statements published by Fuhrman about Stuhrling and Larry Magen are

materially false. 78.

Fuhrman's false statements were intentionally published and Fuhrman knew the

statements to be false at the time he published them. 79.

Fuhrman's statements falsely accuse Stuhrling of having committed a serious

violation of law, i.e., copyright infringement.

Furhman's statements also falsely impute

dishonesty on Larry Magen, an officer and member of, and public spokesperson for, Stuhrling. 80.

The false statements published by Fuhrman are of a nature that would tend to

injure Stuhrling in its trade and business, at the very least by damaging Stuhrling's reputation among watch collectors and aficionados as well as the advertising outlets Stuhrling relies on for its distribution, and by diminishing Stuhrling's sales and revenues. 81.

Indeed Fuhrman's false statements have already evoked responses by watch

aficionados and collectors who have read and believed those statements. For example, on September 17, 2010, a writer named Sean Malone published a reply on the same website in which he stated in relevant part: Wow Aaron I'm shocked after reading your notes on the situation, and surprised at S.O. for such underhanded conduct. This is not the persona we see represented on TV and online.


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As a further example, on September 18, 2010, a writer named Ken Ahearn

published a reply on the same website in which he stated in relevant part: Know this I will never buy or wear another Stuhrling again. The ones I do have, I will give away. 83.

Additionally, on September 18, 2010, another writer named Charles Johnsen

published a reply on the same website in which he said in relevant part: i dont like what happened to you and for that i well never buy a sterling watch again!!!!!! 84.

All of Fuhrman's false statements about Stuhrling and Larry Magen, its President

for North American Operations, were published without privilege or authorization to a third party by having been published on the Internet where others read them. By virtue of having been published on Facebook and having evoked responses, all of Fuhrman's false statements were clearly published to a third party. 85.

It is equally clear that Fuhrman's intentional publication of false statements about

Stuhrling and Larry Magen not only constitute defamation per se, but that actual damages have and will continue to be sustained by Stuhrling as a result of Fuhrman's defamation. 86.

Stuhrling is entitled to actual damages, compensatory damages and punitive

damages as permitted by law in the amount of three million dollars ($3,000,000.00). RELIEF REQUESTED WHEREFORE, plaintiff STUHRLING ORIGINAL LLC respectfully requests that this Court render a declaratory judgment against defendant AARON FUHRMAN D/B/A ZEITLOS IMAGERY herein as set forth above, including granting the requested injunctive relief; that this Court further render a judgment (1) awarding plaintiff STUHRLING ORIGINAL LLC damages on the first cause of action, including but not limited to, compensatory, statutory, aggregate, and


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punitive damages as permitted by law in an amount to be determined at trial; (2) awarding plaintiff STUHRLING ORIGINAL LLC damages on the second cause of action, including but not limited to, injunctive relief, compensatory damages and punitive damages as permitted by law in an amount to be determined at trial; (3) awarding plaintiff STUHRLING ORIGINAL LLC damages on the third cause of action, including but not limited to actual damages, compensatory damages and punitive damages as permitted by law in the amount of three million dollars ($3,000,000.00); (4) awarding plaintiff STUHRLING ORIGINAL LLC reasonable costs, including reasonable attorneys' fees; and that this Court grant the plaintiff such other and further relief as this Court may deem just, proper and equitable.

DEMAND FOR JURY TRIAL Pursuant to Fed. R. Civ. P. 38(b), the plaintiff hereby demands a jury trial. Dated: Babylon, New York March 10, 2011 Respectfully submitted, MURTHA & MURTHA, PLLC Attorneys for Plaintiff By: /s/ James D. Murtha . James D. Murtha, Esq. (JM9930) 26 Railroad Avenue # 351 Babylon, New York 11702-2204 jmurtha@murthalawfirm.com (631) 747-0356 TO:

Attorney for Defendant Robert Herman (admitted pro hac vice) Schwartz, Herman & Davidson 621 North Skinker Boulevard St. Louis, Missouri 63130 bherman@621skinker.com (314) 862-0200


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Certificate of Service I hereby certify that on March 10, 2011, the foregoing document was filed with the Clerk of the Court and served in accordance with the Federal Rules of Civil Procedure, and/or the Eastern District's Local Rules, and/or the Eastern District's Rules on Electronic Service upon the following parties and participants: Robert Herman (admitted pro hac vice) Schwartz, Herman & Davidson 621 North Skinker Boulevard St. Louis, Missouri 63130 bherman@621skinker.com (314) 862-0200 Dated: Babylon, New York March 10, 2011 /s/ James D. Murtha . James D. Murtha, Esq. (JM9930) MURTHA & MURTHA, PLLC 26 Railroad Avenue # 351 Babylon, New York 11702-2204 jmurtha@murthalawfirm.com (631) 747-0356


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