`Case 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 1 of 31 Page ID #:1
`
`2
`
`1 Allen H man California State Bar No. 73371)
`LAW 0 FIC S OF ALLEN HYMAN
`10737 Riverside Drive
`North Holl " 00d, CA 91602
`Phone: (81
`763-6289
`Fax: (818)
`63—4676
`E-mall: lawoffah@aol.com
`
`Matthew F. Schwartz * Pro Hac Vice A licaiion to be Filed
`SCHWARTZ, PONTERIO & LEVENS
`, PLLC
`.
`134 West 2ch Street, Suite 1006
`New York, New York 10001
`Phone: (212 714-1200
`Fax: (212) 14-1264
`E-mall: mschwartz@splaw.us
`
`Oren S. Giskan * Pro Hac Vice figlication to be Filed
`GISKAN SOLOTAROFF & AN RSON LLP
`90 Broad Street, 10th Floor
`New York, New York 10004
`Phone:t(212 847-8315
`Fax: (6 6)_ 20-3237
`E—mall: ogiskan@gslawny.com
`
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`FOUR JAYS MUSIC COMPANY,
`
`Case No.
`
`Plaintiff,
`
`V.
`
`APPLE INC., THE ORCHARD ENTERPRISES, INC,
`ORCHARD ENTERPRISES, NY, INC, and
`CLEOPATRA RECORDS, INC.,
`
`
`COMPLAINT
`FOR COPYRIGHT
`INFRINGEMENT
`AND DEMAND FOR
`JURY TRIAL
`
`Basis for Jurisdiction
`
`1.
`
`The Court has jurisdiction over the subject matter of this action pursuant
`
`to 28 U.S.C. § 1338(a) because this is an action for copyright infringement arising
`
`under the Copyright Act of 1976, 17 U.S.C. §§ 101, 106, 115, 501, 602 et seq.
`
`1
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 2 of 31 Page ID #:2
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 2 of 31 Page ID #:2
`
`Introduction
`
`2.
`
`Plaintiff is the legal and/or beneficial copyright owners of musical works
`
`authored by Harry Warren one of the premier composers of American music.
`3.
`Harry Warren wrote over 800 songs, including At Last, Chattanooga
`
`Choo Choo, I Only Have Eyesfor You, You Must Have Been a Beautiful Baby, Jeepers
`
`Creepers, The Gold DiggerS’Sortg (We ’re in. the Money), Lullaby ofBroadway, You 71
`
`Never Know, 0n the Atcht'son, Topeka and the Santa Fe, That’s Amore, Nagasaki;
`
`There Will Never Be Another You, and The More I See You.
`
`4.
`
`A list of Plaintiffs copyrighted compositions at issue in this case ih
`
`annexed as Exhibit A (the “Subject Compositions”).
`
`5.
`
`The works of Warren have been recorded by the most prominent jazz
`
`and popular artists of all time, including Art Tatum, Benny Goodman, Billie Holliday,
`
`Cab Galloway, Charlie Parker, Coleman Hawkins, Count Basie, Dean Martin, Dizzy
`Gillespie, Duke Ellington, Ella Fitzgerald, Etta James, Frank Sinatra, Fred Astaire,
`
`John Coltrane, Judy Garland, 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.
`
`6.
`
`These and other recordings of Plaintiff‘s copyrighted musical works
`
`have been pirated by the Defendants in this case. Defendants are all players in the
`
`digital music business that participate in, and jointly profit from, making digital
`
`phonorecord deliveries (l.€.,
`
`downloads) of pirated recordings of the Subject
`
`Compositions.
`
`7.
`
`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 ofthe musical composition,
`
`sometimes referred to as a “mechanical license.”
`
`8.
`
`Defendants have failed to obtain any license that would authorize them
`
`
`
`
`to reproduce, distribute, or sell the recordings of the Subject Compositions identified
`
`
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`2
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 3 of 31 Page ID #:3
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 3 of 31 Page ID #:3
`
`on Exhibit B and, as a result, Defendants have infringed Plaintiff’s exclusive rights of
`
`reproduction and distribution of the Subject Compositions, under 17 U.S.C. §§ 106(1)
`
`and 106(3).
`
`9.
`
`Further, the activity of making digital phonorecord deliveries of pirated
`
`recordings of the Subject Compositions does not qualify for a compulsory license
`
`under Section 115 of the Copyright Act.
`
`10. 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.
`11.
`
`.
`Plaintiff has thus far identified 98 pirated recordings of the Subject
`
`Compositions that 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 a concerted and distinct
`distribution chain.
`'
`
`12.
`
`To put this case in context, in 2007, Jamie 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.”
`
`I
`
`‘
`
`13.
`
`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 '
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`3
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 4 of 31 Page ID #:4
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 4 of 31 Page ID #:4
`
`i
`
`1 $22,500 per recording, for a judgment that totaled $675,000 forcing Mr. Tenenbaum
`
`to file for Chapter 7 bankruptcy.
`
`14. Unlike Ms. Thomas-Rassett and Mr. Tenenbaum who were not alleged
`
`to have sold their infringing recordings or profited from their conduct, Defendants in
`
`this case have engaged in massive music piracy operation for the purpose of
`
`generating profits from their sales of pirated recordings and by other means.
`
`15.
`
`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).
`16. As the technology employed by the music industry to reproduce musical
`
`works advanced, bootlegging efforts by music pirates kept pace. In the 19608 and
`19705, organized criminal enterprises engaged in record and tape piracy operations
`
`2 @
`
`U’IJLUJ
`
`10
`
`11
`
`12
`
`13
`
`14
`
`- 15
`
`on a scale that is dwarfed by the infringing conduct explained herein. Like the
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`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).
`
`17.
`
`The landmark case Duchess Music Corp. 12. Stem, 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 was ineligible for a
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`4
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 5 of 31 Page ID #:5
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 5 of 31 Page ID #:5
`
`compulsory license and that reproduction of a musical composition on a pirated
`
`recording infringed the copyright in the composition, even when a compulsory license
`
`was claimed.1
`
`18.
`
`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.
`
`19. Defendants are nothing more than modern tape pirates flying the flag of
`
`compulsory licensing. Their conduct constitutes willful cepyright 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
`
`Four Jays Music Company
`i
`Plaintiff Four Jays Music Company is a California corporation with" a
`
`20.
`
`principal place of business at 421 E. 6th St. in Los Angeles, California.
`
`‘
`Apple
`21. Upon information and belief, Defendant Apple, Inc (“Apple”) is 21
`
`corporation organized under the laws of the State of California with a place of
`
`business at 1 Apple Park Way in Cupertino, California.
`22. Apple owns and operates the US.
`iTunes Store (“iTunes”), a digital
`
`music store that sells permanent downloads. iTunes opened in April 2003 and has
`
`1 The criminal conduct of “tape pirates” became a priority of the Attorney General of the i
`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 OfZamgoza- Vaguero, 26 1&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).
`
`5
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`1
`
`2 L
`
`b.)
`qoxuu
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 6 of 31 Page ID #:6
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 6 of 31 Page ID #:6
`
`been the largest music vendor in the United States since April 2008 and the largest
`
`music vendor in the world since February 2010. As of January 2017, the iTunes Store
`
`offered between 35-40 million recordings for download.
`23. Apple specifically selected and contracted with Orchard to provide its
`
`digital music catalog to be sold in its iTunes store on negotiated financial terms.
`
`24. Apple reproduced and distributed pirated recordings of the Subject
`Compositions it received from Cleopatra and/or Orchard as permanent downlaods
`
`among other types of digital phonorecord deliveries.
`
`Orchard
`
`25. Upon information and belief, Defendant The Orchard Enterprises, Inc. is
`a corporation organized under the laws of the State of Delaware with offices in New
`
`York and Los Angeles.
`26. Upon information and belief, Defendant Orchard Enterprises, NY, Inc.
`is a corporation organized under the laws of the State of New York with Ioffices in
`New York and Los Angeles. Defendants The Orchard Enterprises, Inc. and Orchard
`
`Enterprises, NY, Inc. are united in interest and shall be referred to, individually and
`
`collectively, as “Orchard”.
`
`27. Orchard engages in the distribution of digital music to the iTunes store,
`
`and upon infromation and belief, Orchard is iTunes largest distributor and has
`
`delivered several million recordings to iTunes for sale throughout the U.S..
`
`28. Orchard specifically selected and contracted with Cleopatra to provide
`
`its digital music catalog to be sold in Apple’s iTunes store on negotiated financial
`
`terms.
`
`'
`
`29. Orchard unlawfully reproduced and distributed the pirated recordings of
`
`the Subject Compositions and distributed them to Apple, at the directon of Cleopatra,
`
`and unlawfully authorized Apple’s making of digital phonorecord deliveries in the
`
`iTunes store, at Cleopatra’s direction, as specifically set forth in Exhibit B.
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`6
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 7 of 31 Page ID #:7
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 7 of 31 Page ID #:7
`
`Cleopatra
`
`goats)
`\DOOHJGNU‘I
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`30. Upon information and belief, Defendant Cleopatra Records,
`
`Inc.
`
`(“Cleopatra”) is a business entity organized under the laws of the State of California
`
`with a place of business at 11041 Santa Monica Blvd, Los Angeles, CA.
`
`31.
`
`Cleopatra operates under many pirate label imprint names including
`
`Goldenlane Records, Magic Gold Records, Master Classics, Screenland Records,
`
`Soundtrack Classics, Stardust, Stereo Magic Records, and Vintage Masters Inc.
`
`I
`
`32.
`
`Cleopatra has made pirated copies of recordings embodying the Subject
`
`Compositions, distributed them to Orchard and/or Apple, unlawfully authorized
`
`Orchard’s distribution and delivery of the pirated recordings to Apple for sale in its
`
`iTunes store, and unlawfully authorized Orchard and Apple’s making of digital
`
`phonorecord deliveries in Apple’s iTunes store as specifically set forth in the annexed
`Exhibit B.
`i
`
`33. Upon information and belief, Cleopatra has been one of the Apple’s
`
`single largest record label source of digital recordings for its U.S. iTunes store, at
`
`times having been the record label responsible for as much as 1% of the entire iTunes
`catalog, with hundreds of thousands of recordings, outpacing even the major record
`
`labels.
`
`34. Upon information and belief, Cleopatra is simply duplicating recordings
`of the Subject Compositions made by others without permission and authorizing
`
`Orchard and Apple to sell reproductions of the pirated copies for profit in iTunes.
`
`Jurisdiction, Venue and Joinder
`
`35.
`
`This Court has personal jurisdiction over Defendants because they are
`
`incorporated in California and/or have a principal place of business in this Judicial
`
`District and/or purposefully availed or directed their
`
`infringing activities
`
`in
`
`California. Cleopatra is a California corporation and has its principal place of business
`
`in this district. Apple is incorporated in California and has its principal offices in the
`
`state. The Orchard has offices in Los Angeles, California.
`
`7
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 8 of 31 Page ID #:8
`ase 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 8 of 31 Page ID #:8
`
`36.
`
`Further, Plaintiff’s copyright infringement claims arise out of (a) the
`
`reproduction and distribution ofpirated recordings of the Subject Compositions listed
`
`in Exhibit B, occurring in California, by Defendants and their purposeful direction,
`
`including the sale of pirated recordings of Subject Compositions to California
`
`residents;
`
`or
`
`(b)
`
`transactions
`
`consummated within California
`
`concerning
`
`reproduction, distribution and delivery of the pirated recordings of the Subject
`
`Compositions.
`
`37.
`
`Cleopatra pirated the recordings of the Subject Compositions in this
`
`#LHN
`umu:
`
`8
`
`9 judicial district and directed its distributor, Orchard,
`
`to distribute the pirated
`
`recordings to Apple for sale in its iTunes store.
`
`38. Orchard intentionally distributed and delivered the pirated recordings
`
`identified in Exhibit B to Apple and expressly aimed its infringing conduct at this
`
`jurisdiction by specifically selecting and consummating transactions with Cleopatra
`
`and Apple to reproduce and distribute pirated recordings of Subject Compositions.
`Orchard intentionally authorized Apple to reproduce the pirated recordings of the
`
`Subject Compositions in its iTunes store and to sell permanent downloads to
`California consumers. Orchard and Cleopatra receive royalties and royalty statements
`for all of Apple’s sales of permanent downloads of the pirated recordings of the
`
`Subject Compositions in the iTunes store.
`
`39. Apple reproduced the pirated recordings of the Subject Compositions
`
`and made available, distributed, and sold the pirated these pirated recordings to
`
`Californians in its iTunes store.
`
`40. Venue is proper in this District pursuant to 28 U.S.C §§ 1391 (b), 1391(cT)
`
`and 1400(a)‘ because Plaintiff and Cleopatra are both located in this Judicial District.
`
`In addition, Defendants are subject to personal jurisdiction in this Judicial District and
`
`have committed unlawful acts of infringement in this Judicial District. In addition,
`
`Defendants all have places of business in this Judicial District.
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`8
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 9 of 31 Page ID #:9
`ase 2:19-cv-07952 Document 1 Filed 09/13/19 Page 9 of 31 Page ID #:9
`
`l
`
`41.
`
`Joinder of Cleopatra, Orchard and Apple is proper under Fed. R. Civ. P.
`
`2 20 because Defendants are jointly and severally liable as members of a'distinct
`
`distribution chain for the acts of copyright infringement identified herein.
`
`Harry Warren
`
`42. Harry Warren (1893-1981) has perhaps contributed more to the great
`American songbook than any other songwriter in history. Warren was born to Italian
`
`immigrant parents in Brooklyn, New York. After serving in the US Navy in World
`War I, Warren began writing songs.
`f
`I
`
`43.
`
`In the years 1931 to 1945, Warren wrote more hit songs than Irving
`
`Berlin. He was nominated for the Academy Award for Best Song eleven times (more
`
`than Berlin, George Gershwin, Cole Porter or Richard Rodgers) and won three Oscars
`
`for composing Lullaby ofBroadway, You 71 Never Know, and On the Atehison, Topeka
`
`and the Santa Fe.
`
`
`
`44. Warren wrote the music for the 1933 film musical, 42nd Street,
`
`choreographed by Busby Berkeley, with whom he would collaborate on many musical
`
`films. In 1980, producer David Merrick and director Gower Champion adapted the
`
`film into a Broadway musical that won the Tony Award for Best Musical in 1981 and
`
`OO'xIIGU't-PUJ
`
`KO
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`l6
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`ran for over 3,400 performances.
`
`26
`
`27
`
`28
`
`45. Warren wrote over 800 songs including Chattanooga Choo Choo, the
`
`first song to receive a gold record, presented by RCA Victor in 1942, for sales of 1.2
`
`million copies. Over the course of his career, Warren wrote 81 top 10 hits, including
`
`9
`
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 10 of 31 Page ID #:10
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 10 of 31 Page ID #:10
`
`1
`
`timeless classics such as At Last, I Only Have Eyes For You, That ’s Amore, You Must
`
`2 Have Been A Beautiful Baby, Jeepers Creepers, and The Gold Diggers ’ Song (We ’re
`
`in the Money). Warren was one of America's most prolific film composers, and his
`
`songs have been featured in over 300 films. Harry Warren was inducted into the
`Songwriters Hall of Fame in 1971.
`1
`
`Four Jays Music Company
`
`46.
`In 1955 Harry Warren formed the Four Jays Music Company, a
`California corporation, to own the copyrights in his musical works.
`I
`
`47.
`
`Four Jays Music Company acquired the copyrights in the respective
`
`Subject Compositions by assignment from Harry Warren and third party music
`
`publishers, as well as by assignment by Harry Warren’s wife, daughter, and
`
`grandchildren, who acquired the copyrights by termination notices timely served and
`
`filed with US. Copyright Office under Section 304 of the Copyright Act of 1976.
`48.
`Plaintiff Four Jays Music Company is the legal owner of the US.
`
`copyright in certain of the Subject Compositions as identified in Exhibit A, along with
`
`all accrued causes of action.
`
`E
`
`The Subject Compositions
`
`49.
`
`Plaintiff is the owner of the musical compositions listed in the
`
`Composition Chart annexed as Exhibit A (collectively, the “Subject Compositions”)
`
`that are the subject of this action.
`
`50.
`
`The copyrights for all the Subject Compositions have been registered and
`
`renewed with the US. Copyright Office, and each Subject Composition is the subject
`
`of a valid US. copyright. The Composition Chart annexed as Exhibit A identifies the
`
`copyright registration numbers for each of the Subject Compositions.
`
`51.
`
`Plaintiff is the owner of a share in each of the Subject Compositions in
`
`the percentages listed on Exhibit A.
`
`3 4 5
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`10
`
`i
`
`t
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 11 of 31 Page ID #:11
`
` se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 11 of 31 Page ID #:11
`
`52.
`
`As discussed more fully below, the Defendants have infringed, and are
`
`continuing to infringe, the copyright in each of the Subject Compositions by willfully
`
`reproducing and distributing them without a license.
`
`f
`
`Background
`
`5 3.
`
`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.
`
`54.
`
`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.
`
`55.
`
`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 to seek popular and iconic recordings from any source, legitimate or not,
`
`provided they participate in sharing the proceeds.
`56.
`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 Plaintiff‘s musical works, some of them multiple times.
`
`.
`
`57. All the recordings on the Infringement Chart (EXh. B) embodying the
`
`Subject Compositions are pirated copies, or “bootlegs.” Defendants’ digital
`
`phonorecord deliveries of these pirated copies were all made without authorization
`
`from the copyright owners of the sound recordings or those who originally “fixed”
`
`them as required by Section 115 (discussed below), and the copyright owners of the
`
`Subject Compositions.
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`:
`
`1 1
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 12 of 31 Page ID #:12
`
` se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 12 of 31 Page ID #:12
`
`58. Defendants all generate illicit revenue for themselves when these and
`
`other pirated copies are sold or distributed. Plaintiff has not authorized any
`
`reproduction or distribution of these pirate recordings of the Subject Compositions
`
`(or any identified on Exhibit B) and it is an infringement for which all the Defendants
`
`are jointly and severally liable.
`
`The Pirated Recordings
`
`5 9.
`
`The same deceit and manipulation are at work in all of the infringements
`
`identified in Exhibit B. Defendants have taken recordings of the Subject
`Compositions — in which they hold no rights H and reproduced and distributed pirated
`
`copies of them to the public, for profit, without authorization.
`
`i
`
`60. Virtually all of the recordings at issue in this case were originally made
`
`between 1930 and 1972. Because of the consolidation in the music industry, many of
`the record labels that originally released these recordings have been acquired or
`
`otherwise consolidated by the three remaining major labels, Sony, Universal, and
`
`Warner, and their catalogs were absorbed into the major labels’ “back catalog.” This
`
`consolidation occurred well before the first digital music stores started operating in
`the early 20003.
`i
`
`61.
`Since Cleopatra did not exist prior to 1992, and it did not originally “fix”
`any of the relevant recordings, the only way for it to acquire the rights to duplicate
`
`and distribute them would be to purchase or license rights in these recordings.
`
`62. Upon information and belief, Cleopatra never acquired permission or the
`
`rights to reproduce or distribute any of these back catalog recordings from the major
`
`labels.
`
`63. Upon information and belief, all of the Defendants are simply
`
`duplicating pirated records of the Subject Compositions made by others without
`
`permission, and selling the pirated copies for profit.
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`12
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 13 of 31 Page ID #:13
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 13 of 31 Page ID #:13
`
`Defendants Have Infringed the Subject Compositions
`
`64.
`
`Section 115 of the Copyright Act expressly excludes Defendants”
`
`activity of making the digital phonorecord deliveries identified herein of pirated
`
`recordings of the Subject Compositions from eligibility for a compulsory license and
`
`Defendants have failed to obtain any licenses for the Subject Compositions that
`
`authorize such activity.
`
`65. Upon information and belief, some Defendants may have attempted to
`
`obtain licenses to make digital phonorecord deliveries of the pirated recordings of the
`Subject Compositions identified on the Infringement Chart from the Harry FOR
`
`Agency (“Harry Fox” or “HFA”).
`
`‘
`
`D
`
`66. Harry Fox licenses, however, adopt the terms of Section 115 and are
`
`therefore not available for pirated recordings.
`
`67.
`
`In addition, upon information and belief, some Defendants may have
`
`engaged third party services such as Music Reports, Inc., and RightsFlow to obtain
`
`compulsory licenses for digital phonorecord deliveries the Online Defendants make,
`
`however, the activity of making digital phonorecord deliveries of pirated recordings
`of the Subject Compositions is not eligible for a compulsory license so any such
`
`attempt is ineffective.
`
`Unauthorized Methods of Digital Phonorecord Deliveries
`
`The Infringement Chart annexed as Exhibit B sets forth (1) each pirated
`68.
`recording of the Subject Compositions Within the Cleopatra, Orchard, Apple
`
`these Defendants have
`thus far identified by Plaintiff that
`distribution chain,
`reproduced, distributed, and/or made available for digital phonorecord deliveries in
`
`Apple’s iTunes store Without authorization and (2) the specific types of reproductions,
`
`distributions, and/or digital phonorecord deliveries made (“Method”).
`
`LII-FAWN
`
`10
`
`11
`
`l2
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`t
`
`13
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 14 of 31 Page ID #:14
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 14 of 31 Page ID #:14
`
`
`
`69.
`The various types of unauthorized reproductions, distributions, and/or
`digital phonorecord delivery configurations of pirated recordings of the Subject
`Compositions made and/or authorized by Defendants (the “Methods” in Exhibit B)
`
`are discussed briefly below.
`
`Permanent Downloads
`
`70.
`
`Permanent download means a digital transmission of a sound recording
`
`of a musical work in the form of a download, where such sound recording is accessible
`
`for listening without restriction as to the amount of time or number of times it may be
`
`accessed.
`
`71. Apple has made available, reproduced, and distributed permanent
`downloads of the pirated recordings of the Subject Compositions to their customers
`
`(“PD” on the Infringement Chart) and was unlawfully authorized and directed to do
`
`so by Cleopatra and/or Orchard.
`
`72.
`
`Permanent downloads of pirated recordings of the Subject Compositions
`
`require licenses from the copyright owners of the Subject Compositions and all of the
`Defendants failed to obtain such licenses for each entry on the Infringement Chart at
`
`Exhibit B.
`
`73.
`
`The reproduction and distribution of permanent downloads of pirated
`
`recordings of the Subject Compositions by Defendants, and their authorization of this
`
`activity, infringes Plaintiffs exclusive reproduction and distribution rights under 17
`
`U.S.C. § 106(1) and (3).
`
`Promotional Clips
`74. Apple’s iTunes store has a feature that allow users to interactively stream
`
`a sample, promotional clip, of the recordings that are available for sale as permanent
`
`downloads.
`
`‘
`
`These promotional clips (“‘PC” on the Infringement Charts) are 30—90
`75.
`seconds long and their purpose is to encourage the purchase ofthe tracks as permanent
`downloads.
`
`14
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 15 of 31 Page ID #:15
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 15 of 31 Page ID #:15
`
`\JONU’I-IkUJN
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`76.
`
`These promotional
`
`clips of pirated recordings of
`
`the Subject
`
`Compositions are interactive streams that require a license from the copyright owners
`
`of the Subject Compositions and Defendants all failed to obtain such licenses for each
`
`entry on the Infringement Chart annexed as Exhibit B.
`
`77. Defendants’ respective reproduction and distribution of promotional
`clips ofpirated recordings ofthe Subject Compositions, and their authorization ofthis
`
`activity, infringes Plaintiff’s exclusive reproduction and distribution rights under 17
`
`U.S.C. § 106(1) and (3).
`
`Server Copies
`
`78. Apple reproduced the pirated recordings of the Subject Compositions on
`
`its servers for its iTunes store as server copies (“SC” on the Infringement Chart) and
`
`was unlawfully authorized to engage in this activity by Cleopatra and/or Orchard.
`‘
`79.
`These server copies of pirated recordings of the Subject Compositions
`
`are reproductions that require a license from the copyright owners of the Subject
`
`Compositions and the Defendants failed to obtain such licenses for each, entry on the
`Infringement Chart.
`A
`
`80. Apple’s reproduction of server copies of pirated recordings of the
`
`Subject Compositions, and authorization of this activity by Cleopatra and Orchard, as
`
`well the distribution ofthe server copies ofpirated recordings of Subject Composition
`to Apple, infringes Plaintiff‘s exclusive reproduction and distribution rights under 17
`
`U.S.C. § 106(1) and (3).
`
`Making Available
`
`i
`
`81. Defendants have made and continue to make available, or authorize
`
`making available, permanent downloads of the pirated recordings of the Subject
`
`Compositions to the public by uploading and/or offering pirated recordings of the
`
`Subject Compositions for permanent downloads in iTunes.
`
`82.
`
`The Defendants’ making available (“MA” on the Infringement Chart)
`
`pirated recordings of the Subject Compositions for permanent downloads, and
`
`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL
`
`15
`
`
`
`Case 2:19-cv-07952 Document 1 Filed 09/13/19 Page 16 of 31 Page ID #:16
`se 2:19-cv-O7952 Document 1 Filed 09/13/19 Page 16 of 31 Page ID #:16
`
`hut-1N
`\DOOQONU‘I
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`unlawful authorization of this activity requires a license from the copyright owners of
`
`the Subject Compositions and all Defendants failed to obtain such licenses for each
`
`entry on the Infringement Chart. Defendants have thereby infringed Plaintiff’s
`
`exclusive distribution rights under 17 U.S.C. § 106 as a “deemed distribution.” Ad’cM
`
`Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001); Perfect 10, Inc.
`
`'1}.
`
`Amazon.com, Inc... 487 F.3d 701 718——19 (9th