NYC_1117195.3

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY 

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VIRTUAL STUDIOS, INC.

Plaintiff,

v.

COURISTAN, INC. 

Defendant.

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x

CIV. ACTION No. 11-00427-JLL-CCC

COURISTAN’S ANSWER AND 

AFFIRMATIVE DEFENSES

x

Defendant COURISTAN, INC. (“Couristan”), by and through its attorneys, Foley & 

Lardner, LLP and Rabinowitz, Lubetkin & Tully, L.L.C., hereby submits its Answer and 

Affirmative Defenses to Plaintiff Virtual Studios, Inc.’s (“Plaintiff” or “Virtual”) Complaint as 

follows:

JURISDICTION 

1. Couristan admits that this Complaint is an action for copyright infringement 

under the Copyright Act, 17 U.S.C. §101, et seq. While Couristan does not contest subject 

matter jurisdiction, the allegations of Paragraph 1 of the Complaint relating to jurisdiction are 

legal conclusions to which no answer is required or made. 

VENUE

2. While Couristan does not contest venue, the allegations of Paragraph 2 of the 

Complaint are legal conclusions to which no answer is required or made.

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FACTS COMMON TO ALL COUNTS

3. Couristan lacks knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 3 of the Complaint, and therefore, denies them.

4. Couristan lacks knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 4 of the Complaint, and therefore, denies them.

5. Couristan lacks knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 5 of the Complaint, and therefore, denies them.

6. Couristan admits the allegations of Paragraph 6 of the Complaint.

7. Couristan admits the allegations of Paragraph 7 of the Complaint, except denies

that samples of its products were always sent to Virtual to be photographed and avers that, at

times, Couristan sent digital images of its products to Virtual, which Virtual then inserted into 

the room scene images. 

8. Couristan denies the allegations of Paragraph 8 of the Complaint.

9. Couristan denies the allegations of Paragraph 9 of the Complaint, except 

Couristan admits that the quoted language speaks for itself and that said language was included 

on the reverse side of some but not all invoices, which were typically transmitted to Couristan 

well after Couristan had already received and begun to use the room scene images in question.

10. Couristan denies the allegations of Paragraph 10 of the Complaint.

11. Couristan denies the allegations of Paragraph 11 of the Complaint. 

12. Couristan admits the allegations of Paragraph 12 of the Complaint.

13. Couristan denies the allegations of Paragraph 13 of the Complaint, except 

admits that Couristan continued to use some images for periods exceeding one year. 

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14. Couristan denies the allegations of Paragraph 14 of the Complaint, except 

admits that pursuant to the terms of the agreement between Couristan and Virtual, Couristan 

had the non-exclusive right to use the images for purposes of advertising, sales and marketing 

for so long as the carpets displayed in the images were offered for sale by Couristan and no 

compensation was due to Virtual beyond the invoiced purchase price paid by Couristan. 

15. Couristan denies the allegations of Paragraph 15 of the Complaint.

COUNT I 

Copyright Infringement Under 17 U.S.C. §§ 501, et. seq.

16. Couristan restates and realleges Paragraphs 1 through 15 of its Answer as if 

fully set forth herein.

17. Couristan lacks knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 17 of the Complaint, and therefore, denies them.

18. Couristan denies the allegations of Paragraph 18 of the Complaint.

19. Couristan denies that Virtual provided it with 144 original room scenes, and 

notes that Virtual’s Complaint counts multiples copies of the same scene as distinct “originals”

provided to Couristan. Couristan admits that Virtual provided Couristan with some of the listed 

original room scenes, and otherwise denies the allegations of Paragraph 19 of the Complaint.

20. Couristan admits that Virtual created some of the room scenes listed in 

Paragraph 20 of the Complaint at Couristan’s request but denies that it used each of these 

images and avers that many of the listed images reflect rejected initial drafts submitted by

Virtual and altered at Couristan’s request until Virtual produced, and Couristan approved, a 

final version of the image.

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21. Couristan admits that it used, copied, disseminated and continues to use, copy 

and disseminate some of the room scene images Couristan purchased from Virtual pursuant to 

the agreement between Couristan and Virtual whereby Couristan had the non-exclusive right to 

use the images for purposes of advertising, sales and marketing for so long as the carpets 

displayed in the images were offered for sale by Couristan and no compensation was due to 

Virtual beyond the invoiced purchase price paid by Couristan, and denies the remaining 

allegations of Paragraph 21 of the Complaint. 

22. Couristan admits that it received Virtual’s notice about Couristan’s purported 

infringement of Virtual’s copyrights on or about January 13, 2009, long after it stopped doing 

business with Virtual, but denies that it has infringed or continues to infringe any of Virtual’s 

copyrights because under the terms of the agreement between Couristan and Virtual, Couristan 

had the non-exclusive right to use the images for purposes of advertising, sales and marketing 

for so long as the carpets displayed in the images were offered for sale by Couristan and no 

compensation was due to Virtual beyond the invoiced purchase price paid by Couristan.

23. Couristan denies the allegations of Paragraph 23 of the Complaint.

24. Couristan denies the allegations of Paragraph 24 of the Complaint.

COUNT II

Breach of Contract 

25. Couristan restates and realleges Paragraphs 1 through 24 of its Answer as if 

fully set forth herein.

26. Couristan denies the allegations of Paragraph 26 of the Complaint.

27. Couristan denies the allegations of Paragraph 27 of the Complaint.

28. Couristan denies the allegations of Paragraph 28 of the Complaint.

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PRAYERS FOR RELIEF

Couristan expressly denies that Virtual is entitled to any of the relief requested in 

Virtual’s Prayers for Relief.

COURISTAN’S AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE: FAILURE TO STATE A CLAIM

Virtual’s claims are barred for failure to state a claim upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE: STATUTE OF LIMITATIONS

Virtual’s claims are barred, in whole or in part, by applicable statutes of limitations.

THIRD AFFIRMATIVE DEFENSE: PREEMPTION 

Virtual’s breach of contract claim asserted in Count II is expressly preempted by

the Federal Copyright Act, § 301 et seq. 

FORTH AFFIRMATIVE DEFENSE: ESTOPPEL 

Virtual’s claims are barred by the doctrine of estoppel.

FIFTH AFFIRMATIVE DEFENSE: LACHES 

Virtual’s claims are barred by the doctrine of laches. 

SIXTH AFFIRMATIVE DEFENSE: WAIVER

Virtual’s claims are barred by the doctrine of waiver.

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SEVENTH AFFIRMATIVE DEFENSE: ACQUIESCENCE 

Virtual’s claims are barred by the doctrine of acquiescence.

EIGHTH AFFIRMATIVE DEFENSE: FAILURE TO MITIGATE 

Without any admission by Couristan that Virtual suffered injury in any way, to the 

extent that Virtual did suffer such injury, its claims are barred, in whole or in part, because 

Virtual failed to use reasonable means to prevent the alleged damage and failed to use 

reasonable means to mitigate its damages.

NINTH AFFIRMATIVE DEFENSE: NO DAMAGES 

Virtual’s claims fail, in whole or in part, to the extent Virtual has suffered no damages.

TENTH AFFIRMATIVE DEFENSE: STATUTORY DAMAGES AND ATTORNEY’S 

FEES

Virtual is not entitled to statutory damages or attorney’s fees.

ELEVENTH AFFIRMATIVE DEFENSE: OTHER AFFIRMATIVE DEFENSES BASED 

ON LATER DISCOVERED EVIDENCE

Couristan presently has insufficient knowledge or information on which to form a belief 

as to whether it may have additional, as yet unstated, affirmative defenses available. Couristan

reserves the right to assert additional affirmative defenses under Rule 8(c) of the Federal Rules 

of Civil Procedure or any other defenses, in law or in equity, that may exist or in the future be 

available based on the discovery and further factual investigation in this case. 

WHEREFORE, Couristan prays for entry of judgment:

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A. That Virtual’s Complaint be dismissed in its entirety, and that Virtual take 

nothing thereby;

B. That Couristan be awarded its costs incurred herein;

C. That Couristan be awarded its attorney’s fees pursuant to 17 U.S.C. § 505; and

D. For such other and further relief as the Court determines to be reasonable and 

just. 

Dated: June 2, 2011 Respectfully submitted,

RABINOWITZ, LUBETKIN & TULLY, L.L.C.

By: /s/ Jay L. Lubetkin

Jay L. Lubetkin

293 Eisenhower Parkway, Suite 100

Livingston, New Jersey 07039

Telephone: (973) 597 9100 

Facsimile: (973) 597 9119 

Local Counsel for Defendant COURISTAN, INC.

FOLEY & LARDNER LLP

By: /s/ Robert S. Weisbein

Robert S. Weisbein (pro hac vice)

Akiva M. Cohen (pro hac vice)

90 Park Avenue

New York, NY 10016-1314

Telephone: (212) 682-7474

Facsimile: (212) 687-2329

Counsel for Defendant COURISTAN, INC.

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CERTIFICATE OF SERVICE

I, Robert S. Weisbein, hereby certify that on June 2, 2011, I caused a true and 

complete copy of the foregoing DEFENDANT COURISTAN’S ANSWER AND 

AFFIRMATIVE DEFENSES to be served via the Court’s CM/ECF system upon the following: 

Frank E. Catalina, Esq.

Margulies Wind, PA

Harborside Financial Center

Plaza 10, 3 Second Street, 

Suite 1201

Jersey City, New Jersey 07311-3988

fec@MWHLawfirm.com

Attorneys for Plaintiff 

/s/ Robert S. Weisbein

Robert S. Weisbein

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