Posted in Harvard, Manhattan, The Dirty | September 15th, 2010
Response From Powerhouse Cochran Kardashian:
Mr. Konsoski,
I represent Nik Richie and Dirty World, LLC which operates the website www.TheDirty.com and its related sites. I have received and reviewed several documents from you including: 1.) several purported DMCA notices including one dated Sept. 11, 2010 and another dated Sept. 14, 2010; and 2.) a document which appears to be subpoena allegedly issued by the U.S. District Court for the Southern District of New York, though this document bears no case number and no indication that it was actually issued by the court clerk as required by 17 U.S.C. § 512(h)(1).
Having reviewed these documents, I have several comments and concerns.
First, please note that you have identified the wrong entity in your correspondence – the website www.TheDirty.com is NOT operated by, nor is it associated with, DIRTY WORLD ENTERTAINMENT, LLC. Rather, as is clearly reflected on the site (http://thedirty.com/terms-of-use/) the operator of www.TheDirty.com is DIRTY WORLD, LLC.
Second, please note that the founder, artist, and comedic genius behind www.TheDirty.com is NOT Hooman Karamian. There is no such individual associated with the site, nor is “NIK RITCHIE” the proper spelling of my client’s name. Rather, Mr. Richie’s legal surname is spelled without a ‘t’ – i.e., RICHIE.
Third, please note that you are mistaken in your assertion that Dirty World is not entitled to protection under the DMCA based on its failure to designate an agent for receipt of DMCA notices. As reflected in the attached PDF file, since November 1, 2007, Dirty World, LLC has been properly registered with the U.S. Copyright Office. Nothing more is required in order for Dirty World to be entitled to the safe-harbor provisions of the DMCA. However, for reasons set forth below, this is point is probably irrelevant.
Fourth, Dirty World has serious concerns and, frankly, doubts as to the propriety of your two purported DMCA notices based on the following fact – your notice(s) state that your client, Erin Muller, is the lawful copyright owner of the photos at issue, but that position appears directly inconsistent with the photos themselves. For instance, even a cursory review of the photos demonstrates that Ms. Muller did NOT take, and could not have taken, any of the photos. In every single photo I have reviewed, Mr. Muller is clearly not the photographer; she is engaged in other activity such as A.) opening an oven door; B.) performing fellatio on a very small object; jumping over a railing, or otherwise occupying her hands in such a manner that it would be impossible for her to simultaneously take a photograph.
As you should know, the fact that Ms. Muller is shown in a photo does NOT mean that she also owns the copyright in that photo. Rather, pursuant to 17 U.S.C. 201(a), ownership of a work such initially vests in the “author” of that work. In the case of a photograph, this means the photographer who took the photo owns the copyright, not the model or other subject shown in the photo. Because none of the photos identified in your notice appear to be self-portraits by Ms. Muller, your allegation that Ms. Muller is the owner of the copyright in these photos appears to be facially false.
As you should also know, and as is explained on the “copyright FAQ” section of The Dirty’s site (located here: http://thedirty.com/copyright/) making a materially false statement in a DMCA notice is unlawful pursuant to 17 U.S.C. § 512(f) and may subject the violator to serious consequences including liability for damages, costs and attorney’s fees.
Having said, I recognize that it is always possible that Ms. Muller may nevertheless own the copyright to the photos at issue if the copyright was transferred to her in a written agreement signed by the original owner as required by 17 U.S.C. § 204(a). Alternatively (though this seems highly unlikely), it is also possible that Ms. Muller might be the original copyright owner if the photos were “works for hire”; i.e., they were taken by her employee acting within the scope of his/her employment, or they were made by an independent contractor acting under a written agreement.
In any event, based on the facts presently available, The Dirty and Mr. Richie respectfully decline to honor either of the DMCA notices supplied by your client unless and until your client satisfactorily explains the factual and legal basis for her claim to ownership of these photos. If I do not receive a response to that request by Friday, Sept. 17, 2010, I will assume your client has decided to withdraw her DMCA notices.
In terms of the purported subpoena you provided, please note that pursuant to Fed. R. Civ. P. 45(c)(2)(B), Dirty World objects to the subpoena on the following grounds:
1.) The subpoena does not appear to have been validly issued by the clerk of court as required by 17 U.S.C. § 512(h)(1);
2.) Pursuant to Fed. R. Civ. P. 45(b)(1) the subpoena was not personally served;
3.) Pursuant to Fed. R. Civ. P. 45(b)(2)(B), the subpoena was not personally served within 100 miles of the district court from which it was issued (assuming it was issued at all);
4.) Pursuant to Fed. R. Civ. P. 45(d)(2), the subpoena seeks information which is protected by the First Amendment; see Mobilisa v. Doe, 217 Ariz. 103, 17- P.3d 712 (App. 2007); and Best Western Int’l, Inc. v. Doe, 2006 WL 2091695 (D.Ariz. 2006);
5.) Pursuant to A.R.S. § 12-2214(B), the subpoena is void within the State of Arizona to the extent it seeks information from either Dirty World or Mr. Richie within the affidavit required by A.R.S. § 12-2214(A).
For each of these reasons, Dirty World will not produce the information requested in your subpoena and will take no action with respect to your DMCA notice(s) unless and until you provide additional information as requested above.
If you have any questions, please let me know.
David Gingras, Esq. aka Cochran Kardashian (per Nik Richie)
GINGRAS LAW OFFICE, PLLC
Sorry to bore everyone with this legal mumbo-jumbo, but I would just like to add that I have Erin Muller’s sex tape… so let’s play ball Mr. Kawasaki.- nik
