throbber
Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 1 of 10 Page ID #:120
`
`GRODSKY & OLECKI LLP
`ALLEN B. GRODSKY (SBN 111064)
`allen@grodsky-olecki.com
`2001 Wilshire Blvd., Ste. 210
`Santa Monica, California 90403
`Telephone: (310) 315-3009
`Facsimile: (310) 315-1557
`WINGET, SPADAFORA & SCHWARTZBERG, LLP
`MARC S. EHRLICH (SBN 198112)
`ehrlich.m@wssllp.com
`1900 Avenue of the Stars, Suite 450
`Los Angeles, California 90067
`Telephone: (310) 836-4800
`Facsimile: (310) 836-4801
`Attorneys for Defendant
`Michelle Phan
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. 2:14-cv-05533-MMM-AGR
`
`ANSWER OF DEFENDANT
`MICHELLE PHAN TO FIRST
`AMENDED COMPLAINT
`DEMAND FOR JURY TRIAL
`
`))))))))))))
`
`ULTRA INTERNATIONAL MUSIC
`PUBLISHING, LLC and ULTRA
`RECORDS, LLC,
`
`Plaintiffs,
`
`v.
`MICHELLE PHAN,
`
`Defendant.
`__________________________________
`
`Defendant Michelle Phan, in answer to the First Amended Complaint on file
`herein, admits, denies, and alleges as follows:
`
`PRELIMINARY STATEMENT
`Defendant denies, generally and specifically, each and every allegaion
`1.
`contained in Paragraph 1 of the First Amended Complaint.
`2.
`Defendant lacks information and belief sufficient to enable her to respond
`to Paragraph 2 of the First Amended Complaint and, basing her denial on such
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 2 of 10 Page ID #:121
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`grounds, denies, generally and specifically, each and every allegation contained
`therein.
`Defendant admits that she recently announced the launch of her own
`3.
`music label in partnership with Cutting Edge Group. In further answer to Paragraph 3
`of the First Amended Complaint, Phan denies, generally and specifically, each and
`every other allegation contained therein.
`4.
`Defendant lacks information and belief sufficient to enable her to respond
`to Paragraph 4 of the First Amended Complaint and, basing her denial on said
`grounds, denies, generally and specifically, each and every allegation contained
`therein.
`Defendant denies, generally and specifically, each and every allegation
`5.
`contained in Paragraph 5 of the First Amended Complaint.
`6.
`Defendant denies, generally and specifically, each and every allegation
`contained in Paragraph 6 of the First Amended Complaint.
`7.
`Defendant denies, generally and specifically, each and every allegation
`contained in Paragraph 7 of the First Amended Complaint.
`
`JURISDICTION AND VENUE
`Defendant admits the allegations of Paragraph 8 of the First Amended
`
`8.
`Complaint.
`Defendant admits that she has done business in the State of California. In
`9.
`further answer to Paragraph 9 of the First Amended Complaint, Phan denies, generally
`and specifically, each and every other allegation contained therein.
`10. Defendant admits the allegations of Paragraph 10 of the First Amended
`Complaint.
`11. Defendant admits that venue is proper in the Central District of
`California. In further answer to Paragraph 11 of the First Amended Complaint,
`Defendant lacks information or belief sufficient to enable her to respond to such
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 3 of 10 Page ID #:122
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`allegations and, basing her denial on said grounds, denies, generally and specifically,
`each and every other allegation contained therein.
`
`THE PARTIES
`12. Defendant lacks information or belief sufficient to enable her to respond
`to the allegations of Paragraph 12 of the First Amended Complaint and, basing her
`denial on said grounds, denies, generally and specifically, each and every allegation
`contained therein.
`13. Defendant lacks information or belief sufficient to enable her to respond
`to the allegations of Paragraph 13 of the First Amended Complaint and, basing her
`denial on said grounds, denies, generally and specifically, each and every allegation
`contained therein.
`14. Defendant lacks information or belief sufficient to enable her to respond
`to the allegations of Paragraph 14 of the First Amended Complaint and, basing her
`denial on said grounds, denies, generally and specifically, each and every allegation
`contained therein.
`15. Defendant lacks information or belief sufficient to enable her to respond
`to the allegations of Paragraph 15 of the First Amended Complaint and, basing her
`denial on said grounds, denies, generally and specifically, each and every allegation
`contained therein.
`16. Defendant lacks information or belief sufficient to enable her to respond
`to the allegations of Paragraph 16 of the First Amended Complaint and, basing her
`denial on said grounds, denies, generally and specifically, each and every allegation
`contained therein.
`17. Defendant admits that she is engaged in the production of videos that are
`posted on the website, www.YouTube.com. In further answer to Paragraph 17 of the
`First Amended Complaint, Defendant denies, generally and specifically, each and
`every other allegation contained therein.
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 4 of 10 Page ID #:123
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`FACTUAL BACKGROUND
`18. Defendant lacks information or belief sufficient to enable her to respond
`to Paragraph 18 of the First Amended Complaint, and, basing her denial on said
`grounds, denies, generally and specifically, each and every other allegation contained
`therein.
`19. Defendant admits that she, among other things, is a makeup artist, that
`she has posted videos on YouTube, and that those videos, among other things, provide
`make up advice. In further answer to Paragraph 19 of the First Amended Complaint,
`Defendant denies, generally and specifically, each and every other allegation
`contained therein.
`20. Defendant admits that her YouTube channel, located at
`www.YouTube.com/user/MichellePhan has more than six million subscribers and that
`YouTube lists her video “Barbie Transformation Tutorial” as having more than fifty
`million views. In further answer to Paragraph 20 of the First Amended Complaint,
`Defendant denies, generally and specifically, each and every other allegation
`contained therein.
`21. Defendant admits that, this year she has been featured in an advertising
`campaign for YouTube, that the campaign features other YouTube personalities, and
`that she has appeared in a national advertisement for Dr. Pepper. In further answer to
`Paragraph 21 of the First Amended Complaint, Phan lacks information and belief to
`respond to the other allegations of therein, and, on that basis, denies, generally and
`specifically, each and every other allegation contained therein.
`22. Defendant admits that she has received income from YouTube derived
`from advertisements that appear in association with her videos. In further answer to
`Paragraph 22 of the First Amended Complaint, Defendant denies, generally and
`specifically, each and every other allegation contained therein.
`23. Defendant admits that her website located at michellephan.com contains
`links to her YouTube channel and that her website contains advertising. In further
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 5 of 10 Page ID #:124
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`answer to Paragraph 23 of the First Amended Complaint, Defendant denies, generally
`and specifically, each and every other allegation contained therein.
`24. Defendant admits that she has authored a book and designed a makeup
`line. In further answer to Paragraph 24 of the First Amended Complaint, Defendant
`denies, generally and specifically, each and every other allegation contained therein.
`25. Defendant admits that, with Plaintiffs’ authorization, she has
`synchronized some of the musical compositions and recordings listed in Schedule A
`and B of the First Amended Complaint together with visual footage to create
`audiovisual works, which she has made available to public, consistent with her
`agreement with Plaintiffs. In further answer to Paragraph 25 of the First Amended
`Complaint, Defendant denies, generally and specifically, each and every other
`allegation contained therein.
`26. Defendant admits that Schedule C contains a list of some of Plaintiff’s
`videos and lists some of the musical works contained in those videos. In further
`answer to Paragraph 26 of the First Amended Complaint, Defendant denies, generally
`and specifically, each and every other allegation contained therein.
`27. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 27 of the First Amended Complaint.
`28. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 28 of the First Amended Complaint.
`29. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 29 of the First Amended Complaint.
`
`COUNT 1
`COPYRIGHT INFRINGEMENT
`30. Defendants refer to and incorporate every allegation, admission, and
`
`denial set forth in Paragraphs 1 through 29, above.
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 6 of 10 Page ID #:125
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`31. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 31 of the First Amended Complaint.
`32. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 32 of the First Amended Complaint.
`33. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 33 of the First Amended Complaint.
`34. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 34 of the First Amended Complaint.
`35. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 35 of the First Amended Complaint.
`36. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 36 of the First Amended Complaint.
`
`COUNT II
`COPYRIGHT INFRINGEMENT
`37. Defendants refer to and incorporate every allegation, admission, and
`
`denial set forth in Paragraphs 1 through 29, above.
`38. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 38 of the First Amended Complaint.
`39. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 39 of the First Amended Complaint.
`40. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 40 of the First Amended Complaint.
`41. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 41 of the First Amended Complaint.
`42. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 42 of the First Amended Complaint.
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 7 of 10 Page ID #:126
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`43. Defendant denies, generally and specifically, each of the allegations
`contained in Paragraph 43 of the First Amended Complaint.
`
`As and for her affirmative defenses, Defendant alleges as follows:
`
`FIRST AFFIRMATIVE DEFENSE
`The First Amended Complaint, and each and every purported claim for
`44.
`relief therein, fails to state valid claims for relief against Defendant.
`
`SECOND AFFIRMATIVE DEFENSE
`The First Amended Complaint, and each and every purported claim for
`45.
`relief therein, is barred because Plaintiffs granted an express and/or implied license to
`Defendant to use their copyrighted materials in her videos and, because that license
`had consideration, it is irrevocable.
`
`THIRD AFFIRMATIVE DEFENSE
`The First Amended Complaint, and each and every purported claim for
`46.
`relief therein, is barred by the doctrine of laches.
`
`FOURTH AFFIRMATIVE DEFENSE
`The First Amended Complaint, and each and every purported claim for
`47.
`relief therein, is barred by the doctrine of waiver because, among other things,
`Defendant is informed and believes, and thereon alleges, that Plaintiffs entered into a
`written agreement with YouTube/Google by which Plaintiffs covenanted not to sue
`any YouTube user who synchronizes Ultra content in a video uploaded to the
`YouTube website.
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 8 of 10 Page ID #:127
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`FIFTH AFFIRMATIVE DEFENSE
`48. Defendant is informed and believe, and thereon alleges, that the First
`Amended Complaint, and each and every purported claim for relief therein, is barred,
`in whole or in part, by reason of Plaintiffs’ inequitable conduct and/or unclean hands.
`
`SIXTH AFFIRMATIVE DEFENSE
`The First Amended Complaint, and each and every purported claim for
`49.
`relief therein, are barred by the doctrine of estoppel.
`
`SEVENTH AFFIRMATIVE DEFENSE
`The First Amended Complaint, and each and every claim for relief
`50.
`therein, are barred by the statute of limitations.
`
`EIGHTH AFFIRMATIVE DEFENSE
`To the extent Defendant engaged in any of the acts complained of, such
`51.
`acts were excused, justified, and/or privileged.
`
`NINTH AFFIRMATIVE DEFENSE
`Plaintiffs have failed to mitigate its losses or damages, if any. Therefore,
`52.
`the damages, if any, should be barred or reduced by the amount of such damages that
`Plaintiffs could have avoided.
`
`TENTH AFFIRMATIVE DEFENSE
`53. Defendant has suffered damage as a result of Plaintiffs’ conduct and
`Defendant is entitled to an offset of any amount that is allegedly owed or due to
`Plaintiffs by way of damages.
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 9 of 10 Page ID #:128
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`WHEREFORE, Defendant prays for judgment, as follows.
`1.
`That Plaintiffs take nothing by way of their First Amended Complaint;
`2.
`That the First Amended Complaint, and each and every purported claim
`for relief set forth therein, be dismissed, with prejudice;
`3.
`For an award of attorney’s fees;
`4.
`For the costs of suit incurred herein; and
`5.
`For such other and further relief as this Court may deem just and proper.
`
`Dated: October 24, 2014
`
`GRODSKY & OLECKI LLP
`
`By // Allen B. Grodsky //
` Allen B. Grodsky
`
`Dated: October 24, 2014
`
`WINGET, SPADAFORA &
`SCHWARTZBERG, LLP
`
`By // Marc S. Ehrlich //
` Marc S. Ehrlich
`
`Attorneys for Defendant Michelle Phan
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`Case 2:14-cv-05533-MMM-AGR Document 23 Filed 10/24/14 Page 10 of 10 Page ID #:129
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`DEMAND FOR JURY TRIAL
`Defendant demands a trial by jury as to all claims averred herein that are triable
`to a jury.
`
`Dated: October 24, 2014
`
`GRODSKY & OLECKI LLP
`
`By // Allen B. Grodsky //
` Allen B. Grodsky
`
`Dated: October 24, 2014
`
`WINGET, SPADAFORA &
`SCHWARTZBERG, LLP
`
`By // Marc S. Ehrlich //
` Marc S. Ehrlich
`
`Attorneys for Defendant Michelle Phan
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