Last week Poling filed both an Answer and Counterclaim to Hovey’s federal lawsuit seeking in excess of $75,000 against Poling for his publication of the “bigfoot back shot” picture – aka the Photograph. To boil it down:
Poling admits publishing the photo and then pretty much denies or has no knowledge of the rest of Hovey’s assertions. One particular denial is that Hovey has no lawful right or interest in the Photograph, her registration is not valid and cannot be enforced. He, by counsel, also identifies eight affirmative defenses and uses some of Hovey’s own postings to her blog and other words in support. These include:
- Hovey has no right or interest in authorship or artistry of the Photograph and received no assignment of right, making her sworn claims of Copyright ownership as willfully false and fraudulent.
- Hovey allowed use of the Photograph freely for non-profit and educational purposes, which is what Poling did.
- The Photograph is of a costume, and is incorrectly characterized by Hovey as a live bigfoot.
- Hovey fails to state a claim upon which relief can be granted.
- Hovey has failed to join necessary parties. (We read this as other’s did the same with the Photograph but Hovey did not act, or the necessary parties are the ABS – copyright on the photo says one thing, her registration is for herself).
- Hovey’s claims are barred because of unclean hands as a result of her own misconduct and wrongdoing. (We think – hee, hee)
- Hoveys actions or in-actions amount to a waiver of her claims.
- Hovey violates the Ohio Revised Code prohibiting frivolous conduct in civil actions.
Poling then presents a Counterclaim as part of his answer, again using some of Hovey’s published, audio and visually recorded words. His counterclaim alleges Hovey:
- Falsely and fraudulently claims copyright ownership. He references two exhibits of Hoveys words and deeds asserting she has widely and publicly admitted she has falsely claimed and registered her claim to copyright of the Photograph. She falsely and fraudulently swore a claim to the Federal Court that she is the lawful owner. Hovey has so lawful interest but has admittedly usurped this right form the owner and others who independently posses copies of the Photograph. Hovey allowed others to use the Photograph but singled out Poling for litigation. Her copyright and other claims are abject failures (great lawyereese there) and this was known by Hovey and counsel prior to their effecting service of the Complaint (we speculate this means Poling got a lawyer letter saying stop and making a monetary demand or we will sue and Poling told them to stuff it). Because of the false and fraudulent claim Poling seeks legal fees and costs of at least $25,000.
- Defamation Hovey has repeatedly and with malice called Poling a “lair” and a “thief” in her blog.
- Frivolous Conduct Hovey brought this action for the express purpose of harassing Poling with this frivolous action. Further the express purpose of this action to extort a settlement. Hovey’s claims are not warranted and cannot be supported with a good faith argument of existing law, and it violates Ohio code which prohibits frivolous conduct. Poling again asks for $25,000 for his costs, expenses and attorneys’ fees for defending Hovey’s claim and for more that can be reasonably accounted for and shown to the Court.
The other new document are notes regarding a telephone and email conference of the parties. We can boil it down to Hovey desires more time for this mess to proceed and the chance to amend her claim, Poling wants it to move fast and at an administrative level of proceedings. Both parties expect discovery to be lengthy, mostly because so much of the stuff is on the internet.
Things will likely slow to a crawl now, unless Poling is successful in his answer.