John Pelosi (JP-9066) 

Pelosi Wolf Effron & Spates LLP 

233 Broadway, 22nd Floor 

New York, NY 10279 

(212) 334-3599 

Attorneys for Plaintiff 

George Edward McCain 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

---------------------------------------------------------------X 

 X 

GEORGE EDWARD McCAIN, an individual, X 

 X 

 Plaintiff, X Civil Action No. 07-CV-5729

 X 

 -against- X 

 X 

RAHAL LETTERMAN RACING, LLC, et al. X 

---------------------------------------------------------------X 

AFFIRMATION OF JOHN PELOSI, ESQ. IN OPPOSITION OF DEFENDANTS’ 

MOTION TO TRANSFER

I, John Pelosi, Esq. of the law firm Pelosi Wolf Effron & Spates LLP, attorneys for 

Plaintiff, George Edward McCain, hereby affirm under penalty of perjury the following: 

1. This firm was retained in connection with claims for copyright infringement arising 

from the unauthorized reproduction of photographs of Indy race-car driver Danica Patrick taken 

by Plaintiff George Edward McCain (“McCain”) that were registered with the U.S. Copyright 

Office under #VAU-564-275 (the “Photographs”). The Photographs were taken in Phoenix, 

Arizona on November 14th and 15th, 2002 by Plaintiff, an Arizona resident. They were later 

reproduced throughout the United States in various media by various media outlets and 

company’s reporting on and promoting Danica Patrick.

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2. Approximately forty-five (45) potential defendants were identified as having 

reproduced the Photographs in the period between May and August of 2005. The infringements 

consist of unauthorized reproductions of over seventeen (17) different photographs, in different 

media, including online and offline publications and advertising, magazine covers, editorial uses, 

upon promotional cards, in media press kits, and on apparel. The reproductions have occurred in 

jurisdictions throughout the country by defendants with little or no association. It is presumed 

that many other uses occurred after August 2005; however these uses became too prevalent for 

McCain to track. 

3. In August 2005, this firm sent letters to various infringers informing each of them of 

their unauthorized uses of the Photographs. Responses by many infringers almost uniformly 

identified the source of the Photographs as defendant Rahal Letterman Racing, LLC (“Rahal 

Letterman”). Accordingly, efforts were made to engage Rahal Letterman to reach an amicable 

resolution of this matter. Attached hereto is a copy of the first letter sent to Rahal Letterman 

Racing, LLC dated August 23, 2005. (See Exhibit A.). 

4. From August 2005 to August 2006, letter exchanges occurred with respect to many of 

the defendants. These letters included the specific identification of the Photographs reproduced 

by each infringer. The information available to Plaintiff indicated that Argent Mortgage 

Company, LLC (“Argent”) was in possession of the Photographs in connection with two limited 

licenses that were issued in November 2002 and January 2005. These licenses were procured by 

Argent through the assistance of a photo agent named Mark Borchetta. Argent denies any 

wrongdoing, including any distribution of the Photographs to Rahal Letterman or any other 

defendant. Rahal Letterman likewise denies receiving the Photographs from Argent. Borchetta 

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has stated that his contact was limited to Argent and he never had any association with Rahal 

Letterman or any other defendant relating to the Photographs. 

5. Despite this firm’s efforts to demonstrate the legitimacy and the volume of the 

infringements from August 2005 to August 2006, Rahal Letterman did not offer any reasonable 

or satisfactory resolution. An action was eventually instituted by Argent and Team Rahal, Inc. 

(“Team Rahal”) on August 15, 2006 in the Central District of California (the “California 

Action”). McCain was surprised that Team Rahal joined in initiating the California Action, 

given that McCain never had contacted Team Rahal at any point. This maneuver was clearly “a 

race to the court house” in a forum inconvenient to McCain and was filed, without coincidence, 

immediately after McCain had indicated his intention of filing of a lawsuit in the Southern 

District of New York. Rahal Letterman was not named as a plaintiff in the California Action. 

6. McCain filed an Answer and Counterclaims in the California Action on December 

15, 2006. In his Answer and Counterclaims, McCain identified and named Rahal Letterman as a 

party responsible for certain acts of infringements with respect to the Photographs. Significantly, 

Rahal Letterman never filed an answer or response to the Answer and Counterclaim between 

December 15, 2006 and June 14, 2007 and further ceased to communicate with this firm during 

that time. In or about February 15, 2007, prior to the only scheduling conference in the 

California Action, I contacted Lisa Carteen, Esq., of Baker Hostetler, counsel for Team Rahal, 

Inc., to inquire why Rahal Letterman did not file and Answer to the Counterclaims in the 

California Action. I was told in no uncertain terms that her firm would not accept service for 

Rahal Letterman because it was not a party to the California Action. Thereafter, McCain filed a 

voluntary dismissal pursuant to F.R.C.P. Rule 41(a) with respect to Rahal Letterman in the 

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California Action and proceeded to initiate the present action against Rahal Letterman and 

twenty-eight other defendants. 

7. Since Rahal Letterman was never served and never filed an answer in the California 

Action, its current insistence on transferring the action regarding its liability for acts of 

infringement to California is without merit. Many of the named defendants in this action have 

identified Rahal Letterman as the source of the Photographs, which they reproduced without 

McCain’s permission. Accordingly, McCain has the right to proceed against Rahal Letterman 

and those other parties in a forum where many infringements have occurred and where all or 

most of the defendants are located or transact business. 

8. With respect to the California Action, McCain’s participation in discovery is not 

“extensive.” McCain has responded to several short discovery requests made by Argent. 

McCain has produced approximately 300 pages of responsive documents to Argent representing 

all known relevant evidence in the case in his possession. Most of these documents were 

provided to Argent prior to litigation in connection with efforts to resolve the matter. Team 

Rahal has made no discovery requests in the California Action up to this point. McCain has 

made no discovery requests of Argent or Team Rahal and has conducted no depositions. It is 

believed that neither Argent nor Team Rahal has conducted any depositions. There has been 

only one scheduling conference with Judge Carney since the initiation of the California Action, 

which was held on April 23, 2007 and, furthermore, Judge Carney has at no point required the 

parties to submit letters further describing the facts and issues involved with that case. 

9. Transferring the action to California will cause significant hardship for McCain. 

McCain should not be compelled to bring all claims of infringement against all infringers with 

respect to the Photographs in California. All claims for infringement by various defendants 

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should not be transferred since several of the defendants are located in New York, including 

Time, Inc. d/b/a “Sports Illustrated” and “People”, Logicalis, Inc.; ESPN, Inc., Gawker Media, 

LLC and F1 Marketing Group, Inc. Other defendants appear to have no connection with 

California in relation to the Photographs and could also raise jurisdictional defenses in 

California. These defendants include: Norwalk Furniture Company; Gannet Co., Inc.; 

Motorsport.com, Inc.; Consumers Electronics Association; National Ledger, LLC; International 

Motor Sports Association; Crash Media Group, Ltd.; American Le Mans Series, LLC; Times 

Publishing Company d/b/a “St. Petersburg Times”; Racefan, Inc.; Howden Media Group; 

National Ledger; Daniel Vielhaber d/b/a Indymotorsports.com; and Ellen Emerson d/b/a 

Hondabeat.com. To transfer the case to California inconveniences McCain, the abovementioned defendants, and only invites jurisdictional defenses in California that only serve to 

undermine efforts to preserve judicial efficiency. 

 10. In the event a claim against a New York defendant is barred in California for 

jurisdictional reasons, such claim would either be lost or brought again in New York or another 

jurisdiction with a likely third party claim against Rahal Letterman in those courts. This may 

bring McCain back to New York where he initiated his claims, or alternatively, to other 

jurisdictions throughout the country to seek relief for his claims, which clearly is a waste of 

judicial resources. To grant the Motion to Transfer merely complies with a request made by two 

defendants, one from Ohio, the other from Pennsylvania—perhaps joined by several others 

defendants in this action with promises of indemnification—and overlooks the realities of multiact and multi-defendant copyright infringement cases and the complications which may result 

from a transfer of venue. 

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11. The real beneficiary of transferring the matter to California is Argent. It is 

respectfully submitted that Argent’s preference is not before the Court and should not be a factor. 

Plaintiff is seeking fair and swift compensation for the unauthorized use of his work, and the 

expedited and efficient scheduling offered in the New York venue seems most appropriate to 

achieve this goal. 

Date: _______8/8/07__________ _______/ s/ John Pelosi____________________ 

 JOHN PELOSI, ESQ. (JAP-9066) 

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EXHIBIT A 

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PELOSI WOLF EFFRON & SPATES LLP 

Woolworth Building 

233 Broadway 

221113 Floor 

New York NY 10279 

JOHN PELOSI 

August 23,2005 

VIA CERTIFIED MAIL 

Rahal Letterman Racing, LLC 

4501 Lyman Drive 

Hilliard, Ohio 43026 

Att: General Counsel -Legal Department 

Re: Rahal Letterman Racing LLCYs unauthorized reproduction of photographs bv 

Edward McCain 

Ladies & Gentlemen: 

Our law firm represents photographer Edward McCain. It has come to our 

attention that Rahal Letterman Racing, LLC ("Rahal Letterman") has been reproducing 

two of Mr. McCain7s photographs of Danica Patrick taken in the year 2002 (the 

"Photographs") without Mr. McCainYs authorization. Enclosed please find the following 

documents highlighting Rahal Letterman's unauthorized reproduction of the 

Photographs: 

1) Photograph #2995-7-11 (top left comer), which was reproduced on the 

back cover of the Team Rahal2004 Media Guide (third image from top 

on right side of page); 

2) Photograph #2995-7-11 (top left comer), which was reproduced on 

page 9 of the Team Rahal2004 Media Guide (bottom image); 

3) Photograph #2995-7-11 (top left corner), which was reproduced on 

promotional cards for Team Rahal (image on bottom right, which is 

digitally altered and toned orange); 

4) Photograph #2995-2-6 (top left comer), which was reproduced on 

promotional cards for Rahal Letterman Racing and includes various 

sponsors (image on bottom right); and 

5) Photograph #2995-2-6 (top left corner), which was reproduced on 

- www.raha1 .corn (image on top right corner). 

TEL 212.334.3599 FAX 212.571.9149 EMAIL JPELOSI@PWES.COM 

Case 1:07-cv-05729-JSR Document 35 Filed 08/08/2007 Page 8 of 9
Mr. McCain is the owner of the copyrights and all related rights with respect to 

the Photographs, which are registered with the U.S. Copyright Ofice. At no time did 

Rahal Latterman secure Mr. McCain's permission to reproduce the Photographs in any 

form, nor was any third party authorized to grant rights to reproduce the Photographs. 

Further, upon information and belief, you have included the Photographs in 

electronic press kits which were distributed by you to numerous media outlets. These

press kits also violate Mr. McCain's rights. It should be noted that as a direct result of 

these kits, many other media outlets, including People Magazine, Sports Illustrated, USA 

Today and Indy Men's Magazine have also violated Mr. McCain's copyrights. 

Rahal Letterman's conduct constitutes, among other things, willful and wanton 

copyright infringement for which Ms. McCain is prepared to seek all legal remedies 

including institution of legal proceedings seeking, inter alia, compensatory, statutory, and 

punitive damages, as well as attorney's fees. 

Please contact this office immediately to discuss this matter to avoid institution of 

legal action on behalf of Mr. McCain. 

For your information, please be advised that this firm represents many prominent 

artists and takes matters of this nature very seriously in the pursuit of theprotection of 

copyrights and other rights of our clients. 

Very truly yours, 

JW PELOSI, ESQ. 

cc. Edward McCain 

Angelo DiStefmo 

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