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his wife also hold an exclusive licence with BMNH to produce authentic facsimiles of antiquarian works from the BMNH's libraries. 7. There are 4 million butterfly and 7 million moth specimens in the BMNH. In order to create an illustrated field guide or other systematic work on the lepidoptera of any given country, based on that collection, an individu

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BERNARD d'ABRERA and HILL HOUSE PUBLISHERS PTY LTD. ) ) ) Plaintiffs ) ) v. ) ) THE UNITED STATES ) ) ) Defendant ) ____________________________________)

Case No. 07-365C Judge Charles F. Lettow

COMPLAINT Plaintiffs Bernard d'Abrera and Hill House Publishers Pty Ltd. ("Plaintiffs" or "Mr. d'Abrera") complain of defendant the Smithsonian Institution ("Smithsonian") as follows: NATURE OF THE ACTION 1. This Complaint states claims for violations of the Copyright Act, 17 U.S.C.

101, et. seq. This case has been transferred from the Southern District of New York pursuant to 28 U.S.C. 1631. JURISDICTION AND VENUE 2. Jurisdiction exists under 28 U.S.C. 1498(b) because the Defendant is an

establishment of the United States government charged with copyright infringement under the Copyright Act, 17 U.S.C. 101, et. seq., by and through one of its agents, Stephen Kinyon. PARTIES 3. Plaintiff Bernard d'Abrera resides at 42 Burlington Road, Fulham, London

SW6 4NX, United Kingdom, and is not a United States citizen. Mr. d'Abrera is one of the most famous lepidopterists in the world.

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4.

Plaintiff Hill House Publishers Pty Ltd ("Hill House") is a small publishing

firm located in Malvern, Victoria. Mr. d'Abrera and his wife, Lucilla d'Abrera, are directors of Plaintiff Hill House Publishers Pty Ltd. 5. Defendant, the United States, has consented to be sued and is sued by and

through the Smithsonian Institution ("the Smithsonian"), a museum complex and research organization headquartered in Washington, D.C. The Smithsonian has 18 museums, the Smithsonian National Zoological Park, and 9 research centers. The Smithsonian is primarily funded through governmental appropriations, governmental entities, and private entities. The Conservation and Research Center ("CRC") is a Directorate, or Program, of the Smithsonian's National Zoological Park. Upon information and belief, Stephen Kinyon is an agent of the Smithsonian. BACKGROUND 6. Bernard d'Abrera writes, illustrates and publishes books on butterflies, moths

and other natural history subjects. His work is based on collections in various international institutions, but in particular on the collections of the British Museum (Natural History) (hereafter "BMNH") in London, England. Since 1969, he has held a legitimate agreement with that institution to lawfully to produce images of lepidoptera contained in the BMNH's collections, for his series of over 30 volumes on the lepidoptera of the world. Mr. d'Abrera and his wife also hold an exclusive licence with BMNH to produce authentic facsimiles of antiquarian works from the BMNH's libraries. 7. There are 4 million butterfly and 7 million moth specimens in the BMNH. In

order to create an illustrated field guide or other systematic work on the lepidoptera of any given country, based on that collection, an individual would need to acquire knowledge and experience of the taxonomy, morphology, and bio-geography involving the lepidoptera of the

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world in general, and the country in particular; and spend at least six to eight hours per day working through every specimen in the area of his interest. 8. Since 1965, Mr. d'Abrera has engaged in the following: (a) Identified Type specimens by dissection, examination of the literature in both the sectional and general libraries at the BMNH, and comparison with material known to exist in the Paris, Berlin, Senckenburg, Moscow, Singapore, and Thai National collections through correspondence or visitation. (b) Since 1969 worked at the BMNH nearly every day, including weekends, in order to compile the primary information to make sure that the specimens selected were historically and scientifically accurate as representative vouchers. (c) Traveled to areas of interest in order gather further evidence of the biology of the insects, their locations, and their Early Stages. (d) Physically gathered the drawers of BMNH specimens, from which he selected his material and constructed his taxonomic list. (e) Placed each selected specimen one at a time on a suitable background, and photographed each one. (f) Replaced the specimens in the drawer, and returned the drawer to its proper place in the collection (four floors) of the BMNH. 9. In November 1969, Mr. d'Abrera commenced photography of the butterfly

and moth specimens at the BMNH. He completed photography in November 2005. 10. Over the last forty years, Mr. d'Abrera has photographed 18,000 species of

butterflies of the world, and most of the larger moths. These species have been represented by over 60,000 individual specimen images. Mr. d'Abrera's published work has achieved a

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distinctive and recognizable photographic style, which, because of the unique reference nature of his work, is well-known throughout the world of lepidopterology. 11. Mr. d'Abrera has also described several new genera and over 100 new species

and subspecies. 12. Over the years, Plaintiffs have published, inter alia, the following books:

Butterflies of the Afrotropical Region, part 1 (1997); Butterflies of the Australian Region (1971); Butterflies of the Holarctic Region, part 1 (1990), part 2 (1992), part 3 (1993); Butterflies of the NeoTropical Region, part 1 (1981), part 2 (1984), part 3 (1987), part 4 (1987), part 5 (1988), part 6 (1994), part 7 (1995); Butterflies of the Oriental Region, part 1 (1982), part 2 (1985), part 3 (1986); Concise Atlas of the Butterflies of the World (2001); Moths of Australia (1974); A Field Companion to the Butterflies of Australia and New Zealand (1984); and Birdwing Butterflies of the World (1975) (See e.g., Exhibit A). All images of butterflies and moths in these books were photographed by Mr. d'Abrera. 13. Mr. d'Abrera also contributed the plates to The Butterflies of the Malay

Peninsula, 4th ed. (1992), which was first published in Malaysia. 14. Australia. 15. The three parts of Butterflies of the Oriental Region contain the most complete The three parts of Butterflies of the Oriental Region were first published in

collection of photographs of butterfly and moth species for that region. All photographs of butterflies in these parts were taken by Mr. d'Abrera. 16. Butterflies of the Oriental Region and all other books published by the

Plaintiffs contain a copyright notice identifying Mr. d'Abrera as the copyright owner. (See Exhibit B). The Butterflies of the Malay Peninsula also identifies Mr. d'Abrera as the illustrator, and thus the copyright owner of his own butterfly plates. (See Exhibit C).

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17.

Plaintiffs expended significant resources from 1965 through 2005 producing

their work, and on the production of Butterflies of the Oriental Region (1980-1986). 18. During the past twenty years, Plaintiffs have licensed use of its butterfly and

moth photographs for fees including but not limited to 30 (circa 1986), 130 (circa 19961999), and $312 (current) per image, rising incrementally with inflation and the United Kingdom cost of living index. 19. Upon information and belief, in connection with the government of Myanmar,

the Smithsonian's CRC initiated the project of producing an illustrated checklist of the country's butterflies. 20. Upon information and belief, Scott Miller, associate director for conservation,

and Stephen Kinyon, an amateur lepidopterist who "did not consider himself skilled enough for the task", began working on the project for the Smithsonian's National Zoo. 21. Upon information and belief, Stephen Kinyon and others at the Smithsonian's

CRC realized that they could not collect specimens to cover every butterfly and moth species found in Myanmar. Upon information and belief, Kinyon and others at the Smithsonian discussed the issue and "decided eventually that this should not be a deterrent." Kinyon and other individuals "filled in the gaps with images copied from several published works." The published works from which Kinyon and others copied such images included Mr. d'Abrera's copyrighted works. 22. Kinyon and the Smithsonian's willful decision to use Mr. d'Abrera's

copyrighted works without permission ignored Mr. d'Abrera's property rights. 23. Stephen Kinyon scanned and used more than 1,275 butterfly pictures from

Mr. d'Abrera's Butterflies of the Oriental Region, parts 1, 2, and 3, and over 100 butterfly pictures from The Butterflies of the Malay Peninsula.

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24.

Upon information and belief, An Illustrated Checklist for the Butterflies of

Myanmar was published at the direction of agents for the Smithsonian. 25. The cover of An Illustrated Checklist for the Butterflies of Myanmar states that

it is "Sponsored by: Smithsonian Institution" and "Compiled by: Stephen Kinyon." (See Exhibit D). 26. Upon information and belief, costs of An Illustrated Checklist for the

Butterflies of Myanmar were paid from funds of the Smithsonian Institution, through the Smithsonian's CRC. 27. Mr. d'Abrera was given no attribution for his photographs in An Illustrated

Checklist for the Butterflies of Myanmar. 28. An Illustrated Checklist for the Butterflies of Myanmar, which contained

approximately 2,135 images, contained approximately 1,375 unauthorized reproductions of images from Plaintiffs' books without attribution. 29. At least some of the butterflies and moths featured in An Illustrated Checklist

for the Butterflies of Myanmar were clearly and deliberately transposed or tampered with, i.e. by repairing tears in hindwings, airbrushing out legs, and cutting off a right forewing apex, apparently to disguise provenance of Mr. d'Abrera's original figures. 30. An Illustrated Checklist for the Butterflies of Myanmar was published without

Plaintiffs' authorization to governmental ministries of Myanmar and other people. 31. An Illustrated Checklist for the Butterflies of Myanmar was distributed without

the Plaintiffs' authorization to governmental ministries of Myanmar and other people, including the California Academy of Sciences Library. (See Exhibit E) 32. Plaintiffs first learned of An Illustrated Checklist for the Butterflies of

Myanmar in or around October 2004.

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COUNT I (Direct Copyright Infringement) 32. Plaintiffs repeat and re-allege each and every allegation contained in

paragraphs 1 through 33 as if fully set forth herein. 34. Plaintiffs have complied in all respects with the Copyright Act of 1976, 17

U.S.C. 101 et. seq., as amended, and all other laws, treaties, and regulations governing copyrights, and has secured the exclusive rights and privileges in and to the copyrights of Butterflies of the Oriental Region, by Bernard d'Abrera, and in the plates in The Butterflies of the Malay Peninsula. 35. Butterflies of the Oriental Region was first published in Australia, a signatory

to the Berne Convention. The Butterflies of the Malay Peninsula was first published in Malaysia, a signatory to the Berne Convention. 36. Stephen Kinyon's conduct constitutes direct infringement under 17 U.S.C.

106 and 501 et seq. Kinyon engaged in direct infringement of Plaintiff's copyright by (a) reproducing and distributing over 1,375 of Mr. d'Abrera's photographs without Plaintiffs' permission, license, or consent; and (b) preparing derivative works based upon the photographs and books without Plaintiffs' permission, license or consent. 37. The foregoing acts of infringement by Stephen Kinyon have been willful,

intentional, and purposeful, in disregard of, and indifferent to the rights of the Plaintiff. 38. As a direct and proximate result of the direct infringements by Stephen

Kinyon of Plaintiffs' copyright and exclusive rights under copyright, Plaintiffs are entitled to damages pursuant to 17 U.S.C. 504(b) for each act of infringement. 39. Kinyon's conduct threatens to cause, and is causing, and unless enjoined and

restrained by this Court, will continue to cause, Plaintiffs great and irreparable injury that cannot be fully compensated for or measured in money. Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. 502, Plaintiffs are entitled to preliminary and permanent

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injunctions prohibiting further infringements of their copyright and exclusive rights under copyright. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against the Smithsonian Institution as follows: A. For damages in such an amount as may be found, or for such other amount as

may be proper pursuant to 17 U.S.C. 504(b). B. For a preliminary and a permanent injunction enjoining infringement of

Plaintiffs' copyrighted works. C. D. For prejudgment interest according to law. For such other and further relief as the Court may deem just and proper.

Respectfully submitted,

/s/ Sally Wiggins_________________ Sally Wiggins Kara L. Szpondowski Niro, Scavone, Haller & Niro 181 W. Madison, Suite 4600 Chicago, Illinois 60602 (312) 236-0733 Attorneys for Plaintiffs

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