Literary (such as fiction, nonfiction, poetry, reference works)
Claimant is the creator, developer, and registered copyright holder of Winning Isn’t Normal, which was copyrighted in 1982 and registered in 1989 (Registration No. TX 0002672644.) [Exhibit-1]. The text at issue, also titled “Winning Isn’t Normal” (herein referred to as ”WIN”) is claimant’s original, creative expression of claimant’s philosophy of what claimant believes is the best approach to outperforming the competition in sports and in all other endeavors in which success is desirable. WIN is not factual. WIN appears on p.8 [Exhibit-2] in the INTRODUCTION of “Winning Isn’t Normal” and is the heart of the book. In fact, the work was built around WIN. The rest of the work consists of examples and extensions of claimant’s WIN philosophy. [Exhibit-3]
1. Through claimant’s diligent efforts to identify unauthorized uses of Winning Isn’t Normal, on August 31, 2021 claimant discovered that on November 23, 2020, a date after claimant’s book “Winning Isn’t Normal” was copyrighted and registered; respondents duplicated, posted, disseminated, and displayed “WIN” on their commercial website. [Exhibits: 4,5 infringing posts]
2. Respondents’ posts are near identical to almost 100% of the section of the work, which appears on page 8: WIN. [Exhibits: 2&4]
3. Respondents’ posts were instantaneously disseminated to respondents’ customers and 1709 Followers [Exhibit-6 followers] as well as displayed to everyone in the world with access to the Internet. Further, respondents induced others to repost/share WIN with their followers, thereby exacerbating the unauthorized disseminations of WIN which caused a cascade of unauthorized distributions of WIN.
4. Respondents market themselves as: having the “BEST PIZZA LINER in the World.” They advertise that: “Perfect Crust Pizza Liners are far superior to any other liner on the market.” [Exhibit-7]
5. Claimant’s work was additionally shared/displayed by Vice President of Perfect Crust Pizza, Eric Bam on Facebook, Twitter, and Instagram. Although respondents were warned of the copyright infringement in claimant’s 9/1/21 C&D [Exhibit-8] Mr. Bam’s Twitter & Instagram posts remain up today. [Exhibit-9]
6. Through these unauthorized commercial actions, respondents infringed claimant’s exclusive rights at least to: (1) reproduce WIN; (2) distribute copies of WIN to the public; and (3) display WIN publicly. Claimant believes that respondents’ displays do not qualify for any of the exemptions to display.
7. Respondents are not and have never been authorized to reproduce, disseminate, display, or use WIN in any way or by any means including by any advances in technology
8. Respondents never even bothered to contact claimant to seek permission to use WIN for any purpose.
9. Claimant believes respondents willfully used WIN for commercial use – namely, in connection with the marketing of themselves, in order to enhance respondents’ reputations; to improve respondents’ job performances and to further their business profits.
1. The only permitted use of claimant’s copyrighted work, Winning Isn’t Normal, is to purchase a copy of Winning Isn’t Normal at $41.90 multiplied by: the number of copies made; the number of copies distributed in any manner by any means including by any advances in technology; the number to whom Winning Isn’t Normal was publicly displayed; or any other means or uses.
2. Any public display is instantaneously distributed to the current number of persons who have access to the Internet. Claimant believes that respondents’ uses of Winning Isn’t Normal do not qualify for any legal exemptions to display.
3. Moreover, respondent has encouraged others to duplicate, distribute, and display WIN by inviting them to share/repost WIN: many of whom have gone on to post/share/display WIN as if it were their own creation.
4. The work has continued to sell every year since it was first made available for sale. In fact, the work sold thousands of copies through pre-publication mail-outs before it was printed. The work continues to sell in 2023 although little or no marketing has been done for years, beyond its presence on winningisntnormal.com.
5. Had respondents purchased the work at $41.90 per unit for everyone to whom respondent distributed WIN, [the only permitted way to use claimant’s copyrighted works], the costs would have been prohibitive to respondents’ ability to duplicate, to distribute, or to display WIN anywhere near the extent they did. Moreover, claimant suffered huge losses of sales from respondents’ failure to pay for what respondents used.
6. Furthermore, respondents’ unauthorized uses encouraged others to share WIN with their followers, thereby exacerbating the harm suffered and causing a cascade of ongoing and expanding unauthorized copying, disseminating, and public display of WIN, which induced, facilitated, and encouraged further downstream infringements.
7. No matter what respondents might claim are reasons why respondents wouldn’t have purchased the work or otherwise used the work or WIN had respondents known it was copyrighted, (or some other after-the-fact fabricated excuse – read: “if they knew they would get caught”) the fact remains that respondents have gained all the benefits without purchasing the work and without authorization.
8. There are 62 sections in the work. Claimant is aware of an enormous number of unauthorized uses of WIN yet claimant is only aware of fewer than a handful of unauthorized uses of all of the other 61 sections combined.
9. Prior to claimant’s printing of claimant’s 1998 book titled “THE SWIM TO WIN PLAYBOOK,” claimant sold more than $16,000 (equivalent to more than $30,000 in 2023 dollars) worth of advertising to be included in the back pages of THE SWIM TO WIN PLAYBOOK which more than paid for the printing of 5,000 copies of said book. Claimant believes the advertisers who are still in business are still reaping the benefits of their ads, now 25 years later, and will continue to do so for years to come. [Exhibit-10_ads]
10. Similarly, prior to claimant’s printing of claimant’s 2001 book titled “The Parent’s Guide,” claimant sold thousands of dollars worth (in 2001 dollars) of advertising for inclusion in the back pages of The Parent’s Guide. Again, more than paying for the printing and providing claimant a profit before the book was ever printed. [Exhibit-10_ads]
11. Considering the enormous popularity of WIN in most all sports and other areas in which success is desired, claimant has already begun the process of selling advertising for placement in an upcoming large print run of the work.
12. Claimant is also in the process of including all of claimant’s existing books in a Winning Isn’t Normal series; renaming some of the titles; creating new covers; rebranding all of claimant’s books that were originally marketed mostly to the swimming world so as to be increasingly attractive to those seeking success in any endeavor; and has already begun the process of selling advertising for inclusion in each of the books in the newly formed Winning Isn’t Normal series.
13. To date, claimant has been unable to negotiate a reasonable settlement for respondents’ unauthorized uses of Winning Isn’t Normal.
14. Claimant seeks a settlement in the amount of $30,000 and any other relief deemed fair and reasonable.
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