Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 1 of 148 Page ID #:1
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`Henry L. Self III (California State Bar No. 223153)
`Ryan W. Powers (California State Bar No. 291784)
`SELF & POWERS
`1645 Vine Street, Suite 307
`Los Angeles, California 90028-8805
`Phone: (323) 487-0383
`Fax: (323) 487-0384
`E-mail: hself@selfandpowers.com
`
`Matthew F. Schwartz * Pro Hac Vice to be filed
`Brian S. Levenson * Pro Hac Vice to be filed
`SCHWARTZ, PONTERIO & LEVENSON, PLLC
`134 West 29th Street, Suite 1006
`New York, New York 10001
`Phone: (212) 714-1200
`Fax: (212) 714-1264
`E-mail: mschwartz@splaw.us
`E-mail: blevenson@splaw.us
`
`Oren S. Giskan * Pro Hac Vice to be filed
`GISKAN SOLOTAROFF & ANDERSON LLP
`90 Broad Street, 10th Floor
`New York, New York 10004
`Phone: (212) 847-8315
`Fax: (646) 520-3237
`E-mail: ogiskan@gslawny.com
`
`Attorneys for Plaintiffs
`SA MUSIC, LLC and
`HAROLD ARLEN TRUST
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`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Case No.
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`COMPLAINT
`FOR COPYRIGHT
`INFRINGEMENT
`AND JURY DEMAND
`
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`
`
`SA MUSIC, LLC and HAROLD ARLEN TRUST,
`
`Plaintiffs,
`
`
`
`v.
`APPLE INC., AMAZON.COM, INC., AMAZON
`DIGITAL SERVICES LLC, GOOGLE INC., GOOGLE
`LLC, MICROSOFT CORPORATION, PANDORA
`MEDIA, INC., THE ORCHARD ENTERPRISES,
`INC., ORCHARD ENTERPRISES NY, INC.,
`BELIEVE, BELIEVE, SAS, BELIEVE DIGITAL SAS,
`ISOLATION NETWORK, INC. d/b/a INGROOVES,
`SECOND WIND DIGITAL, THE STATE51
`CONSPIRACY LTD, NAXOS OF AMERICA, INC.,
`PHONOFILE AS, ADASAM LIMITED,
`COMPLAINT
`1
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 2 of 148 Page ID #:2
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`CLEOPATRA RECORDS, INC., PICKWICK GROUP
`LIMITED, CUGATE LTD., WNTS, IDEAL MUSIC,
`SHAMI MEDIA INC., BLUE SOUNDS, TVP, INC., J.
`JOES J. EDIZIONI MUSICALI, MARATHON
`MEDIA INT. LTD., THOMAS COLLEY, BEST
`RECORDS, WERNER LAST’S FAVOURITES JAZZ,
`BROKEN AUDIO, RELOADED MUSIC, VINTAGE
`MUSIC SL, ACROBAT MUSIC LTD., FUTURE
`NOISE MUSIC LIMITED, PINK DOT,
`PRIMEPHONIC USA INC., DWK RECORDS,
`SENDDIGITAL, CTS DIGITAL, MICHAEL
`BENNETT, AP MUSIC LTD, JAZZSENTIAL,
`HASMICK PROMOTIONS LIMITED, HENRY
`HADAWAY ORGANIZATION LIMITED,
`ENTERTAIN ME LTD., OVC MEDIA, MACH60
`MUSIC, AVID GROUP, IMPRESSIONS, GRALIN
`MUSIC, JAZZ CO., MOVE, XELON
`ENTERTAINMENT PTY. LTD., CHERISHED
`RECORDS, RAILROAD, VINTAGE RECORDS,
`PLENTY JAZZ RECORDS, JAZZ MOON,
`FAVORITE CLASSICS, HISTORICAL JAZZ,
`RARITY MUSIC, LIONFISH MUSIC, LLC, TRITON,
`SMITH & CO B.V., BRISA RECORDS, CLASSICS,
`ROBA MUSIC VERLAG GMBH, BACCI BROS
`RECORDS, DIGITAL GRAMOPHONE, PLAZA
`MAYOR COMPANY LIMITED, BLARICUM C.D.
`COMPANY (B.C.D.) BV, and John Doe Distributors
`and John Doe Pirate Labels 1–10,
` Defendants.
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`Introduction
`1.
`This case is about massive music piracy operations in the digital music
`stores and streaming services of some of the largest tech companies in the world.
`Apple, Amazon, Google, Microsoft, and Pandora and their distributors have joined
`with notorious music pirates to sell and stream thousands of pirated recordings
`embodying copyrighted musical works owned by plaintiffs SA Music, LLC and the
`Harold Arlen Trust (“Plaintiffs”).
`2.
`Plaintiffs are the legal and/or beneficial copyright owners of musical
`works authored by Harold Arlen, a premier composer of American music. Arlen
`wrote and co-wrote some of the most popular modern songs, including Over the
`Rainbow from The Wizard of Oz and many other seminal works in the American
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`COMPLAINT
`2
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`

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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 3 of 148 Page ID #:3
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`songbook, including I’ve Got the World on a String, Stormy Weather, The Devil and
`the Deep Blue Sea, Come Rain or Come Shine, Get Happy, Ill Wind and It’s Only A
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`Paper Moon. A list of Plaintiffs’ copyrighted compositions at issue in this case is
`annexed as Exhibit A (the “Subject Compositions”).
`3.
`Arlen’s masterpieces have been recorded by the most prominent jazz
`and popular artists of all time, including Art Tatum, Benny Goodman, Billie
`Holliday, Cab Calloway, Charlie Parker, Coleman Hawkins, Count Basie, Dizzy
`Gillespie, Duke Ellington, Ella Fitzgerald, Etta James, Frank Sinatra, John Coltrane,
`Lena Horne, Louis Armstrong, Miles Davis, Ray Charles, and Sarah Vaughan to
`name only a few. These monumental works of art are, quite literally, national
`treasures.
`4.
`These and other recordings of Arlen’s musical works have been pirated
`by the Defendants in this case. They are players in the digital music business that
`participate in, and jointly profit from, making digital phonorecord deliveries, (i.e.,
`downloads and interactive streams), of pirated recordings of the Subject
`Compositions.
`5.
`Digital phonorecord deliveries of musical recordings constitute a
`reproduction and distribution of the musical work embodied in the digital recording
`and require a negotiated license from the copyright owner of the musical
`composition, sometimes referred to as a “mechanical license.”
`6.
`Defendants have failed to obtain any license that would authorize them
`to reproduce, distribute, sell or stream the pirated recordings of the Subject
`Compositions and, as a result, Defendants have infringed Plaintiffs’ exclusive rights
`of reproduction and distribution of the Subject Compositions, under 17 U.S.C. §§
`106(1) and 106(3).
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`COMPLAINT
`3
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 4 of 148 Page ID #:4
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`7.
`Further, the activity of making digital phonorecord deliveries of pirated
`recordings of the Subject Compositions does not qualify for a compulsory license
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`under Section 115 of the Copyright Act.
`8.
`A list of the pirated recordings of the Subject Compositions that
`Defendants have reproduced and distributed without authorization, including by
`making digital phonorecord deliveries, and various methods of reproduction and
`distribution, thus far identified, is set forth in the Infringement Chart annexed as
`Exhibit B.
`9.
`Over 6,000 pirated recordings of the Subject Compositions have been
`separately reproduced and distributed as digital phonorecord deliveries by
`Defendants as set forth in the Infringement Chart annexed as Exhibit B. Defendants
`have infringed these works in concerted and distinct distribution chains, each of
`which gives rise to an award for statutory damages under the Copyright Act.
`10. To put this case in context, in 2007, Jammie Thomas-Rasset, a single
`mother of four in Brainerd, Minnesota, was found liable, after three separate jury
`trials, for copyright infringement for using file sharing software that enabled the
`unauthorized downloading and distribution of 24 recordings by the Goo Goo Dolls
`and Def Leppard, among others. The juries awarded statutory damages in all three
`trials of up to $80,000 per infringement. The Eighth Circuit Court of Appeals
`ultimately affirmed statutory damages in the amount of $9,250 for each infringed
`recording, for a total award of $222,000. Ms. Thomas-Rassett declared bankruptcy
`as she had “no other option.”
`11.
`In 2009, Joel Tenenbaum, a Massachusetts college student, who also
`used file-sharing software that permitted others to download 30 recordings by Limp
`Bizkit and Blink-182, was found liable and the jury awarded statutory damages of
`$22,500 per recording, for a judgment that totaled $675,000 forcing Mr. Tenenbaum
`to file for Chapter 7 bankruptcy.
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`COMPLAINT
`4
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 5 of 148 Page ID #:5
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`12. Unlike Ms. Thomas-Rassett and Mr. Tenenbaum who were not alleged
`to have sold their infringing recordings or profited from their conduct, Defendants in
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`this case have engaged in massive music piracy operation for the purpose of
`generating profits from their sales and streams of pirated recordings and by other
`means.
`13. The copyright infringement operation detailed in this Complaint is only
`the latest in a long line of piracy schemes that have plagued composers, publishers,
`and record labels since the inception of the music industry over 100 years ago, when
`the perforated rolls used by player pianos to perform musical works were pirated.
`See Aeolian Co. v. Royal Music Co., 196 F. 926 (W.D.N.Y. 1912).
`14. As the technology employed by the music industry to reproduce
`musical works advanced, bootlegging efforts by music pirates kept pace. In the
`1960s and 1970s, organized criminal enterprises engaged in record and tape piracy
`operations on a scale that is dwarfed by the infringing conduct explained herein.
`Like the Defendants in this case, the “tape pirates” and “record pirates” of years past
`unlawfully duplicated popular pre-existing recordings, and then claimed their
`liability was limited by the compulsory license provision of the 1909 Copyright Act,
`Section 1(e).
`15. The landmark case Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th
`Cir. 1972) settled the issue as to whether tape pirates could limit their liability for
`piracy under the compulsory license provision of the 1909 Copyright Act. In
`Duchess, the defendant tape pirate engaged in the same conduct identified in this
`Complaint, and claimed her conduct was lawful because the compulsory license
`provision of the Copyright Act authorized the reproduction and distribution of the
`musical works embodied on the recordings she pirated. The Ninth Circuit rejected
`the argument, stating, “She may not continue her piracy under the flag of
`compulsory licensing.” The Duchess court concluded that the tape pirates’ activity
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`COMPLAINT
`5
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 6 of 148 Page ID #:6
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`was ineligible for a compulsory license and that reproduction of a musical
`composition on a pirated recording infringed the copyright in the composition, even
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`when a compulsory license was claimed.1
`16. The holding in Duchess was codified when the Copyright Act was
`revised in 1976. The statutory bar against compulsory licensing of pirated
`recordings continues in the recent amendments to Section 115 of the Copyright Act,
`which provides that reproduction and distribution of pirated sound recordings is an
`activity that is ineligible for a compulsory license.
`17. Defendants are nothing more than modern tape pirates flying the flag of
`compulsory licensing. Their conduct constitutes willful copyright infringement of
`the Subject Compositions in violation of the United States Copyright Act [17 U.S.C.
`§§ 101, 106, 115, 501, 602 et seq.] (the “Copyright Act”).
`The Parties
`18. Plaintiff SA Music, LLC is a Nevada limited liability company and
`Sam Arlen is the sole member of the company.
`19. Plaintiff Harold Arlen Trust is a trust created by Harold Arlen in his
`will. Sam Arlen is the beneficiary of the trust.
`20. Defendant Apple, Inc. (“Apple”) is a California corporation with a
`principal place of business in Cupertino, California.
`21. Defendant Amazon.com, Inc. is a Delaware corporation with its
`principal place of business in Seattle, Washington.
`22. Defendant Amazon Digital Services LLC is a Delaware limited liability
`corporation with its principal place of business in Seattle, Washington and
`
`1 The criminal conduct of “tape pirates” became a priority of the Attorney General of the United States,
`Edward H. Levi, in 1975 when the Justice Department determined that decisions reached by four Circuit Courts of
`Appeals, including the Ninth Circuit in Duchess, rendered tape pirates criminally liable even where the statutory
`royalty was tendered. See Heilman v. Levi, 391 F.Supp. 1106 (E.D.Wisc. 1975). Criminal copyright infringement
`sentences continue to this day. See Matter of Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016)(defendant sentenced
`to 33 months in prison and ordered to be removed from the United States for selling bootleg copies of music CDs at a
`Florida flea market, as a crime involving moral turpitude).
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`COMPLAINT
`6
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`authorized to do business in California. Defendants Amazon.com, Inc. and
`Defendant Amazon Digital Services LLC shall be referred to collectively as
`“Amazon.”
`23. Defendant Google, Inc. is a Delaware corporation with it principal
`place of business in Mountain View, California.
`24. Google LLC is a limited liability company organized under the laws of
`the State of Delaware with its principal place of business in Mountain View,
`California. Defendants Google, Inc. and Google LLC shall be referred to
`collectively as “Google.”
`25. Defendant Microsoft Corporation (“Microsoft”) is a Washington
`corporation with its principal place of business at One Microsoft Way, Redmond,
`Washington and authorized to do business in California.
`26. Defendant Pandora Media, Inc. (“Pandora”) is a Delaware Corporation
`with its principal place of business at 2101 Webster Street, Suite 1650, Oakland, CA
`94612.
`27.
` Upon information and belief, Defendant The Orchard Enterprises, Inc.
`is a corporation organized under the laws of Delaware with a principal place of
`business at 11444 W Olympic Blvd, Los Angeles, CA.
`28. Upon information and belief, Defendant Orchard Enterprises, NY, Inc.
`is a corporation organized under the laws of New York with a principal place of
`business at 11444 W Olympic Blvd, Los Angeles, CA. Defendants The Orchard
`Enterprises, Inc. and Orchard Enterprises, NY, Inc. shall be referred to herein as
`“Orchard.”
`29. Upon information and belief, Defendant Believe is a business entity
`organized under the laws of France with a principal place of business at 2 Place du
`Colonel Fabien, Paris, France.
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`COMPLAINT
`7
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 8 of 148 Page ID #:8
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`30. Upon information and belief, Defendant Believe, SAS is a business
`entity organized under the laws of France with a principal place of business at 2
`Place du Colonel Fabien, Paris, France.
`31. Upon information and belief, Defendant Believe Digital SAS is a
`business entity organized under the laws of France with a principal place of business
`at 2 Place du Colonel Fabien, Paris, France. Defendants Believe, Believe, SAS, and
`Believe Digital, SAS shall be referred to as “Believe Digital.”
`32. Upon information and belief, Defendant Isolation Network, Inc. d/b/a
`INgrooves (“Ingrooves”) is a corporation organized under the laws of California
`with a principal place of business at 15821 Ventura Blvd # 420, Encino, CA.
`33. Upon information and belief, Defendant Second Wind Digital is a
`business entity organized under the laws of United Kingdom with a principal place
`of business at 34 Trinity Crescent, London, UK.
`34. Upon information and belief, Defendant The State51 Conspiracy Ltd
`(“State51”) is a business entity organized under the laws of United Kingdom with a
`principal place of business at 17 Hereford Street, London, UK.
`35. Upon information and belief, Defendant Naxos of America, Inc. is a
`corporation organized under the laws of Tennessee with a principal place of
`business at 1810 Columbia Avenue Suite 28, Franklin, Tennessee.
`36. Upon information and belief, Defendant Phonofile AS is a business
`entity organized under the laws of Norway with a principal place of business at
`Storgata 7 NO-0155, Oslo, Norway.
`37. Upon information and belief, Defendant Adasam Limited is a business
`entity organized under the laws of United Kingdom with a principal place of
`business at The Allbrite Building, Darley Dale Road, Corby, Northamptonshire,
`UK.
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`COMPLAINT
`8
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 9 of 148 Page ID #:9
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`38. Upon information and belief, Defendant Cleopatra Records, Inc. is a
`corporation organized under the laws of California with a principal place of business
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`at 11041 Santa Monica Blvd, Los Angeles, CA.
`39. Upon information and belief, Defendant Pickwick Group Limited is a
`business entity organized under the laws of United Kingdom with a principal place
`of business at Suite 1 Second Floor - Merritt House, Hill Avenue, Buckinghamshire,
`UK.
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`40. Upon information and belief, Defendant Cugate Ltd. is a business
`entity organized under the laws of Germany with a principal place of business at
`Belziger Str. 72, Berlin, Germany.
`41. Upon information and belief, Defendant Shami Media Inc. is a
`corporation organized under the laws of New York with a principal place of
`business at 265 West 37th Street, New York, NY.
`42. Upon information and belief, Defendant Blue Sounds is a business
`entity organized under the laws of Spain with a principal place of business at 26
`Carrer de Benet i Mateu, Barcelona, Spain.
`43. Upon information and belief, Defendant TVP, Inc. is a business entity
`organized under the laws of Florida with a principal place of business at 701 NE
`195th St, Miami, Florida.
`44. Upon information and belief, Defendant J. Joes J. Edizioni Musicali is
`a business entity organized under the laws of Italy with a principal place of business
`at Via Dei Campigli 110, Verese, Italy.
`45. Upon information and belief, Defendant Marathon Media Int. Ltd. is a
`business entity organized under the laws of United Kingdom with a principal place
`of business at 69 Twyford Abbey Road, London, UK.
`46. Upon information and belief, Defendant Thomas Colley is an
`individual residing in the United Kingdom.
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`COMPLAINT
`9
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 10 of 148 Page ID #:10
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`47. Upon information and belief, Defendant Vintage Music SL is a
`business entity organized under the laws of Spain with a principal place of business
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`at c/ Lepanto 339-341 Local 4, Barcelona, Spain.
`48. Upon information and belief, Defendant Acrobat Music Ltd. is a
`business entity organized under the laws of United Kingdom with a principal place
`of business at 42A Cannon Lane, Middlesex, UK.
`49. Upon information and belief, Defendant Future Noise Music Limited is
`a business entity organized under the laws of United Kingdom with a principal place
`of business at Unit 1L, Clapham North Art Centre, London, UK.
`50. Upon information and belief, Defendant Primephonic USA Inc. is a
`corporation organized under the laws of Delaware with a principal place of business
`at c/o Bailey Duquette P.C., 100 Broadway, 10th Floor, New York, NY.
`51. Upon information and belief, Defendant Michael Bennett is an
`individual residing in the United Kingdom.
`52. Upon information and belief, Defendant AP Music Ltd is a business
`entity organized under the laws of United Kingdom with a principal place of
`business at Gable House, London, UK.
`53. Upon information and belief, Defendant Hasmick Promotions Limited
`is a business entity organized under the laws of United Kingdom with a principal
`place of business at Unit 8 - Forest Hill Trading Estate, London, UK.
`54. Upon information and belief, Defendant Henry Hadaway Organization
`Limited is a business entity organized under the laws of United Kingdom with a
`principal place of business at Hatton House - Church Lane, Hertfordshire, UK.
`55. Upon information and belief, Defendant Entertain Me Ltd. is a business
`entity organized under the laws of United Kingdom with a principal place of
`business in London, UK.
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`COMPLAINT
`10
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 11 of 148 Page ID #:11
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`56. Upon information and belief, Defendant OVC Media is a business
`entity organized under the laws of United Kingdom with a principal place of
`business at 34 Salisbury Street, London, UK.
`57. Upon information and belief, Defendant Avid Group is a business
`entity organized under the laws of United Kingdom with a principal place of
`business at 15 Metro Centre Dwight Road, Watford, Hertsfordshire, UK.
`58. Upon information and belief, Defendant Xelon Entertainment Pty. Ltd.
`is a business entity organized under the laws of Australia with a principal place of
`business at 294A Bridge Road, Richmond, VIC, Australia.
`59. Upon information and belief, Defendant Lionfish Music, LLC is a
`limited liability company organized under the laws of New York with a principal
`place of business at 809 Union Street - Apt 4, Brooklyn, NY.
`60. Upon information and belief, Defendant Smith & Co B.V. is a business
`entity organized under the laws of Netherlands with a principal place of business at
`PO Box 608, 1620 AR, Hoorn, Netherlands.
`61. Upon information and belief, Defendant Brisa Records is a business
`entity organized under the laws of Spain with a principal place of business at Calle
`Llobregat (Pol Ind. El Pla), 8 - Nav 5, 8750, Molins De Rei, Barcelona, Spain.
`62. Upon information and belief, Defendant ROBA Music Verlag GmbH is
`a business entity organized under the laws of Germany with a principal place of
`business at Neue Rabenstrasse 3, Hamburg, Germany.
`63. Upon information and belief, Defendant Digital Gramophone is a
`business entity organized under the laws of United Kingdom with a principal place
`of business at 22a St Gabriels Road, London, UK.
`64. Upon information and belief, Defendant Plaza Mayor Company
`Limited is a business entity organized under the laws of United Kingdom with a
`principal place of business at Lower Ground Floor, One George Yard, London, UK.
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`COMPLAINT
`11
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 12 of 148 Page ID #:12
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`65. Upon information and belief, Defendant Blaricum C.D. Company
`(B.C.D.) BV is a business entity organized under the laws of Netherlands with a
`principal place of business at Dalkruidbaan 109, Capelle Aan Den Ijssel,
`Netherlands.
`66. Upon information and belief, Defendants Wnts, Ideal Music, Best
`Records, Werner Last's Favourites Jazz, Broken Audio, Reloaded Music, Pink Dot,
`DWK Records, SendDigital, CTS Digital, Jazzsential, Mach60 Music, Impressions,
`Gralin Music, Jazz Co., Move, Cherished Records, Railroad, Vintage Records,
`Plenty Jazz Records, Jazz Moon, Favorite Classics, Historical Jazz, Rarity Music,
`Triton, Classics, and Bacci Bros Records, are trade names for business entities
`and/or persons whose identities and locations are unknown to plaintiffs but known
`to the Online and/or Distributor Defendants.
`Jurisdiction and Venue
`67. The Court has jurisdiction over the subject matter of this action
`pursuant to 28 U.S.C. § 1338(a) because this is an action arising under the
`Copyright Act of 1976, 17 U.S.C. §§ 101, 106, 115, 501, 602 et seq.
`68. This Court has personal jurisdiction over Defendants because they do
`systematic and continuous business and/or have a place of business in this Judicial
`District. Further, Plaintiffs’ copyright infringement claims arise out of the
`reproduction and distribution of pirated recordings of the Subject Compositions
`listed in Exhibit B, occurring in California, by the Pirate Label, Distributor and/or
`Online Defendants. The Pirate Label Defendants expressly aimed their infringing
`conduct at this jurisdiction by specifically selecting which Distributor and Online
`Defendant would distribute its pirated recordings of the Subject Compositions to for
`further reproduction, distribution, sales and streams, and directly engaging in and/or
`authorizing such infringing activity in California. The Distributor Defendants
`expressly aimed their infringing conduct at this jurisdiction by specifically selecting
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`COMPLAINT
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 13 of 148 Page ID #:13
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`California Pirate Label Defendants’ recordings to aggregate and distribute, and/or
`which Online Defendant it would distribute its pirated recordings of the Subject
`Compositions to for further reproduction, distribution, sales and streams, and
`directly engaging in and/or authorizing such infringing activity in California. The
`Online Defendants expressly aimed their infringing conduct at this jurisdiction by
`selecting the pirated recordings of the California Pirate Labels and/or California
`Distributor Defendants to unlawfully reproduce and distribute in California and
`directly engaging in such activity.
`69. Venue is proper in this District pursuant to 28 U.S.C §§ 1391(b),
`1391(c) and 1400(a) because Defendants are subject to personal jurisdiction in this
`Judicial District and have committed unlawful acts of infringement in this Judicial
`District. In addition, several Defendants have places of business in this Judicial
`District.
`
`Harold Arlen
`70. Harold Arlen (1905–1986) was a master composer and a highly
`regarded contributor to the Great American Songbook. The son of a synagogue
`cantor, Arlen was born in Buffalo, New York and emerged as one of the greatest
`American composers and songwriters, writing extraordinarily complex melodies and
`harmonies that remained accessible to a broad popular audience.
`71. Early in his career, Arlen wrote songs for musicals, including the entire
`scores for Broadway shows such as Cotton Club Parade, Life Begins at 8:40,
`Bloomer Girl, St. Louis Woman, Jamaica and Saratoga, among others.
`72. Arlen was also active in Hollywood and composed the music for some
`of the greatest film musicals of all time, most notably all the music in the 1939
`motion picture classic “The Wizard of Oz,” including Ding, Dong! The Witch Is
`Dead, We're Off To See The Wizard, and Over The Rainbow.
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`COMPLAINT
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/19 Page 14 of 148 Page ID #:14
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`73. Over The Rainbow, performed by Judy Garland in the film, won the
`Academy Award for Best Original Song. The song is one of the most enduring
`standards of the 20th century and was voted number one on the "Songs of the
`Century" list compiled by the Recording Industry Association of America and the
`National Endowment for the Arts. The American Film Institute also ranked Over
`The Rainbow the greatest movie song of all time.
`74. Arlen successfully collaborated with the greatest of the Tin Pan Alley
`lyricists, including E.Y. “Yip” Harburg, Ira Gershwin, Johnny Mercer, Leo Robin
`and Ted Koehler.
`75. Arlen’s partnership with Harburg extended over many decades. With
`Billy Rose, they wrote It's Only A Paper Moon in 1933. They followed up with a
`successful revue, Life Begins at 8:40, which included lyric collaborations with his
`old friend, Ira Gershwin, including Fun to Be Fooled, You're A Builder Upper, and
`Let's Take A Walk Around The Block.
`76. Arlen was inducted into the Songwriters Hall of Fame in 1971 and was
`honored with its highest accolade, the Johnny Mercer Award, in 1982.
`77.
`In 1996, Arlen was honored and memorialized by the United States
`Postal Service with his own stamp:
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`COMPLAINT
`14
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`Plaintiffs
`78. Harold Arlen’s son, Sam Arlen, acquired the U.S. copyrights in the
`Subject Compositions between 1989 and 2013, by termination notices that he, as
`sole statutory heir under Section 304 of the Copyright Act of 1976, served and filed
`with Copyright Office.
`79.
`In 2018, Sam Arlen assigned the U.S. copyrights in the Subject
`Compositions, as set forth in the Composition Chart annexed as Exhibit A, along
`with all accrued causes of action, to his company, SA Music, LLC. SA Music, LLC
`is the legal and/or beneficial owner of all the Subject Compositions identified in
`Exhibit A, along with all accrued causes of action.
`80.
` Plaintiff Harold Arlen Trust acquired the U.S. copyrights identified in
`the Composition Chart annexed as Exhibit A by operation of will and through
`termination notices served and filed by Harold Arlen during his lifetime with the
`U.S. Copyright Office under Section 304 of the Copyright Act of 1976.
`81. Plaintiff Harold Arlen Trust is the legal owner of certain of the Subject
`Compositions as identified in Exhibit A, along with all accrued causes of action.
`The Subject Compositions
`82. Plaintiffs are owners of the musical compositions listed in the
`Composition Chart annexed as Exhibit A (collectively, the “Subject Compositions”)
`that are the subject of this action.
`83. The copyrights for all the Subject Compositions have been registered
`and renewed with the U.S. Copyright Office, and each Subject Composition is the
`subject of a valid U.S. copyright. The Composition Chart annexed as Exhibit A
`identifies the copyright registration numbers for each of the Subject Compositions.
`84. Plaintiffs are the owners of a 50% copyright interest in each of the
`Subject Compositions, except where a lesser percentage is indicated on Exhibit A.
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`COMPLAINT
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`85. As discussed more fully below, the Defendants have infringed, and are
`continuing to infringe, the copyright in each of the Subject Compositions by
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`willfully reproducing and distributing them without a license.
`Background
`86. Defendants each fall into at least one of three categories of participants
`in the digital music business: (a) online digital music stores and streaming services
`(listed in paragraphs 132 through 148 below); (b) distributors; and (c) pirate record
`imprints/labels (identified in Exhibit C).
`87. Before digital music distribution, recorded music was physically
`distributed through brick-and-mortar stores that were confined by the limitations of
`shelf space. Recording artists signed exclusive recording contracts with record
`labels in order to have their records pressed and distributed in national record stores.
`88.
`It is hard to imagine that a person walking into Tower Records, off the
`street, with arms full of CDs and vinyl records and claiming to be the record label
`for Frank Sinatra, Louis Armstrong and Ella Fitzgerald, could succeed in having that
`store sell their copies directly next to the same albums released by legendary record
`labels, Capitol, RCA and Columbia, and at a lower price.
`89. Yet, this exact practice occurs every day in the digital music business,
`where there is unlimited digital shelf space (for example, there are more than 40
`million recordings in the iTunes store) and a complete willingness by the digital
`music stores and services to seek popular and iconic recordings from any source,
`legitimate or not, provided they participate in sharing the proceeds.
`90. The iconic status of the pirated recordings of the Subject Compositions
`at issue in this case cannot be overstated. Any list of the most popular singers and
`musicians of any period between 1930 and 1970 would be replete with the artists
`who have recorded Arlen’s works, some of them multiple times.
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`COMPLAINT
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`Case 2:19-cv-04073-JFW-RAO Document 1 Filed 05/09/