Case 1:15-cv-00322 Document 1 Filed 01/21/15 Page 1 of 6 PageID #: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
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CRAIG ANTHONY MILLER,
)
)
Plaintiff,
) Civ. Action No. _____
)
against
) Jury Trial Requested
)
TOLL BROTHERS, INC.
)
)
Defendant.
)
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COMPLAINT FOR COPYRIGHT INFRINGEMENT

Plaintiff, Craig Anthony Miller, by his attorneys, BahnMulter LLP, for his
complaint against Defendant, Toll Brothers, Inc. alleges as follows:
JURISDICTION AND VENUE
1.

This is a civil action seeking damages and injunctive relief for

copyright infringement under the copyright laws of the United States, 17 U.S.C. 101 et
seq.
2. This Court has jurisdiction under 17 U.S.C. 101 et seq., 28 U.S.C. 1331,
and 28 U.S.C. 1338(a).
3.

This Court has personal jurisdiction over the Defendant and venue in this

District is proper under 28 U.S.C. 1391(b) and 28 U.S.C. 1400(a) in that the
Defendant conducts business in this District and the acts of infringement complained of
herein occurred in this District.

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PARTIES
4.

Plaintiff Craig Anthony Miller, known as CAM is an individual residing in

Brooklyn, New York.

5. Plaintiff is informed and believes that Defendant is a corporation organized
under the laws of the State of Delaware with a principal place of business at 250 Gibralter
Road, Horsham, Pennsylvania and doing business in this District as Toll Brothers City
Living, 16 Court Street, Suite 2400, Brooklyn, New York.
FACTUAL BACKGROUND
6. Plaintiff is a Brooklyn native and an artist. Originally inspired by stained glass
art, he now uses his training in graphic art to create "street art" throughout New York
City. His work has been described as "a time traveling exploration of far-reaching distant
lands run by tribal warriors who morph stealthily into today's urban landscape capturing
moments of clarity amidst busy lives." Over the past decade, Plaintiffs colorful, vibrant
work has become iconic -- an integral part of the visual fabric of the Dumbo/Fort Green
area of Brooklyn, New York. It appears on the brick facade of ReBar Gastropub, on The
WalkWay and on the exterior of Pedro's, the landmark Mexican restaurant on Jay Street.
Perhaps most famous of all is the 90 foot elephant mural, formerly located on Water
Street, which has served as the backdrop for countless videos, weddings, engagements,
fashion shoots, television and print advertisements and tourist photographs (the Water
Street Mural). Although the Water Street Mural and the wall that supported it have been
taken down to make way for expensive town houses, its legacy lives on in the hearts and
minds of residents and in the thousands of photographic reproductions that have been
made of it over the years. Indeed, residents of the area have said that the Water Street

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Mural perfectly represents the "strength and survival of a community, despite who or
what may come and go." In May of 2014, The Real Deal reported that real estate
developers in Dumbo, and specifically Defendant, made the conscious decision to
highlight rather than erase graffiti at their luxury development, where asking prices
ranged from $400,000 to $2 million. The article quotes David von Spreckelsen,
President of the New York City division of Toll Brothers City Living as saying: I
thought it looked really cool. It reflected New Yorks history.
7. In late January of 2012, Plaintiff first learned that Defendant Toll Brothers was
using a photograph of a very recognizable portion of the Water Street Mural in
advertisements for luxury loft-style condominiums at 205 Water Street in Dumbo.
According to the advertisements, the condominiums would be available for occupancy in
the summer of 2012 and prices for studio apartments started at $400,000, one-bedroom
apartments at $540,000, two-bedrooms at $900,000 and three-bedrooms at $1.1 million.
These advertisements appeared on posters throughout the New York City Subway system
and on telephone booths and bus stop shelters throughout the City. Defendants also used
the Water Street Mural in at least one full page print advertisement in the New York
Times and in a banner and advertisement that ran in the Real Estate section of the digital
edition of the New York Times. These commercial uses of the Water Street Mural by
Defendant were never authorized by Plaintiff.
8. After learning of the infringement, Plaintiff, through counsel, sent a letter to
Toll Brothers demanding that they immediately cease and desist any and all unauthorized
use of Plaintiff's artwork and demanding compensation for the infringing use of the
Water Street Mural in advertisements for its 205 Water Street luxury condominiums. For

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several months thereafter, counsel for Plaintiff engaged in email communications with
David A. Larkin, Vice President and General Counsel of Toll Brothers, in an effort to
secure fair compensation for Plaintiff. Mr. Larkin suggested a meeting between Plaintiff
and David Von Spreckelson to discuss possible opportunities for future projects. Several
meetings occurred and Plaintiff produced work for Toll Brothers City Living Group for a
number of months, but no projects ever materialized and no payment was ever made to
Plaintiff for the infringing use of the Water Street Mural in Defendants advertisements
for 205 Water Street or for the work he did for Toll Brothers City Living Group.
COUNT I
INFRINGEMENT OF COPYRIGHTS
9.

Plaintiff incorporates herein by this reference each and every allegation

contained in each paragraph above.

10. Plaintiff is and at all relevant times has been the owner of the exclusive rights
under United States Copyright Act of the copyrighted artwork identified in Exhibit A
attached hereto, which is the subject of a valid Certificate of Copyright Registration
issued by the Register of Copyrights.
11. Among the exclusive rights granted to Plaintiff under the Copyright Act is the
exclusive right to license others to reproduce all or portions of the Water Street Mural
and use those reproductions in commercial advertising.
12. Plaintiffs are informed and believe that Defendant, without the permission or
consent of Plaintiff, made reproductions of all or significant portions of the Water Street
Mural and used them in advertisements for loft-style condominiums at 205 Water Street
in Dumbo that appeared on posters throughout the New York Subway system and on

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phone booths and bus shelters throughout New York City. A copy of one such
advertisement is attached hereto as Exhibit B. Advertisements for Defendant's luxury
condominiums containing unauthorized reproductions of the Water Street Mural were
also published in the print and online editions of the New York Times. Defendant's
actions constitute infringement of Plaintiff's exclusive rights under the Copyright Act.
13. Plaintiff is informed and believes that the foregoing acts of infringement have
been willful and intentional, with disregard and indifference to the rights of Plaintiff.
14. As a result of Defendant's infringement of Plaintiff's copyrights and exclusive
rights under copyright, Plaintiff is entitled to damages pursuant to 17 U.S.C. 504 and
his attorneys' fees and costs pursuant to 17 U.S.C. 505.
15. Defendant's conduct is causing and unless enjoined by this Court will
continue to cause Plaintiff irreparable injury that cannot be fully compensated or
measured in money. Plaintiff has no adequate remedy at law and are entitled to
injunctive relief pursuant to 17 U.S.C. 502 and 503 prohibiting Defendant from further
infringing Plaintiffs' copyrights and ordering Defendant to destroy all copies of
advertising materials made in violation of Plaintiff's exclusive copyrights.
WHEREFORE, Plaintiff prays for judgment against Defendant as follows:
1. For an injunction providing: "defendant is hereby enjoined from directly or
indirectly infringing Plaintiff's rights under federal or state law in the Water Street Mural
and any artwork, whether now in existence or later created, that is owned or controlled by
Plaintiff (collectively "Plaintiff's Artwork") except pursuant to a lawful license or with
the express permission and authority of Plaintiff. Defendant shall also destroy all copies,
in any and all media in which they exist, of Plaintiff's Artwork in Defendant's possession,

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custody or control, including, without limitation, copies in the possession of the New
York Times and the New York City Metropolitan Transit Authority."
2. For damages for each infringement of each of Plaintiff's Artwork pursuant to
17 U.S.C. 504.
3. For Plaintiff's costs in this action.
4. For Plaintiff's reasonable attorneys' fees.
5. For such other and further relief as the Court may deem just and proper.
Dated:

New York, New York

January 21, 2015
BAHNMULTER, LLP

___________________________
Katherine J. Daniels, Esq.
555 Fifth Avenue, FL 14
New York, New York 10017
212-447-4700
212-986-5316
kdaniels@bmgllp.com