Case 2:22-cv-00809-MCS-MAR Document 1 Filed 02/07/22 Page 1 of 13 Page ID #:1
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`
`
`Richard S. Busch (SBN 319881)
`E-Mail: rbusch@kingballow.com
`KING & BALLOW
`1999 Avenue of the Stars, Suite 1100
`Los Angeles, CA 90067
`Telephone: (424) 253-1255
`Facsimile: (888) 688-0482
`Attorney for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`YELLOW ROSE PRODUCTIONS, INC.,
` Case Number: 22-cv-00809
`
`a Corporation on behalf of Bill Engvall
`
`
`COMPLAINT FOR
`
`Plaintiff,
`COPYRIGHT
`
`INFRINGEMENT
`vs.
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`
`
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`PANDORA MEDIA, LLC,
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`a limited liability company
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`DEMAND FOR JURY TRIAL
` Defendant.
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`
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`Plaintiff YELLOW ROSE PRODUCTIONS, INC., on behalf of Bill Engvall,
`
`by and through its attorneys of record, alleges as follows:
`JURISDICTION
`1.
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §
`1331 as the action arises under the original and exclusive jurisdiction of the federal
`court and 28 U.S.C. § 1338(a) as the controversy arises under the Copyright Act of
`1976 (17 U.S.C. § 101 et seq.).
`2.
`This Court has personal jurisdiction over Defendant as discussed fully
`below.
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`3.
` This Court has general personal jurisdiction over Pandora Media,
`LLC (“Pandora”) because Pandora’s principal place of business is in Oakland,
`California, while also having a substantial office in Santa Monica, California,
`meaning that Pandora is at home in the State of California. Furthermore:
`a. Upon information and belief, through January 28, 2022, Pandora was
`qualified to do business in California and was registered as a foreign
`corporation with the California Secretary of State.
`b. Pandora is also registered as a foreign limited liability company with
`the California Secretary of State.
`c. Pandora’s designated DMCA Copyright Agent identified in its
`“Intellectual Property Policy” on its website is located in California at
`2100 Franklin Street, 7th Floor, Oakland, California 94612.
`d. Pandora has previously admitted in other federal court filings that
`California has jurisdiction over it. See , Wixen Music Publishing, Inc.
`v. Pandora Media, Inc., Case No. 2:19-cv-5278-SVW (C.D. Cal.), Dkt.
`15 (Pandora Media, Inc.’s Answer) at ¶¶ 16-17 (“Pandora admits that
`[it] has availed itself of California law . . . and venue is proper in the
`[Central District of California]”).
`4.
`This Court has specific personal jurisdiction over Pandora because its
`suit-related conduct creates a substantial connection with the State of California
`and this Judicial District. YELLOW ROSE PRODUCTIONS, INC., on behalf of
`Bill Engvall, (hereinafter “Engvall”) is a copyright owner of properly registered
`spoken word literary works (the “Works” or “Engvall’s Works”) (see Exhibit A).
`Upon information and belief, Pandora has generated substantial revenue from
`exploitation of the Works in California, as further discussed below:
`a. Pandora actively and purposely does business in California, as
`evidenced by its (i) subscribers and users in California, which Pandora
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`actively reaches out to through, at a minimum, its website
`(www.pandora.com) and mobile app; (ii) contracts and other
`transactions that it has entered into in California; (iii) revenue
`generated from California residents and businesses in connection with
`its service; and (iv) advertisements that target California residents.
`b. Pandora has purposefully availed itself of California law and could
`and did reasonably anticipate being brought into this Court because,
`among other reasons, Pandora (i) has been engaged and is engaged in
`infringing conduct within the State of California and this District,
`including by knowingly, intentionally, and repeatedly streaming
`sound recordings and the Works over the Internet to California
`residents via its services; (ii) knew or should have known that the harm
`caused by its repeated unlicensed public performance of the Works
`over the Internet was aimed at comedy writers and comedy publishers,
`including Plaintiff, who control the Works and are managed and
`administered in or near Los Angeles County, California, a global hub
`of the entertainment industry; and (iii) knew or should have known
`that Plaintiff, an industry leading comedian, actor and comedy writer
`for nearly 40 years, would suffer, and in fact did suffer, the brunt of
`the harm caused by Pandora’s unauthorized acts in California and
`around the world.
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`VENUE
`5.
`Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b),
`and § 1400(a), as a substantial part of the events or omissions giving rise to the
`claim occurred in this district, including for example, by the maintenance of
`Pandora’s corporate office in Santa Monica, California. Plaintiff has its principal
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`place of business in this District and has been injured in this District as a result of
`Pandora’s infringing conduct.
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`PARTIES
`6.
`Plaintiff, YELLOW ROSE PRODUCTIONS, INC., represents the
`intellectual property rights of Bill Engvall, who is an actor, writer, and comedian
`who resides in Utah. YELLOW ROSE PRODUCTIONS, INC. is a corporation in
`the care of JP Williams and Jennifer Riker of Parallel Entertainment located at 9696
`Culver Boulevard, Suite 308, Culver City, CA 90232.
`7.
`Defendant, Pandora, is a Delaware limited liability company with a
`principal place of business at 2100 Franklin Street, Suite 700, Oakland, California
`94612. According to its website, Pandora maintains another corporate office in
`California, located at 3000 Ocean Park Boulevard, Suite 3050, Santa Monica,
`California 90405.
`
`PRELIMINARY STATEMENT
`8. Just as there is with music, there are two copyrights involved in the
`recorded performance of a literary copyrighted work: a copyright in the sound
`recording, and a separate copyright in the underlying spoken word composition
`(Engvall’s compositions, as noted, are referred to herein as “the Works” or
`“Engvall’s Works”). Pursuant to 17 U.S.C. §§ 106 and 204 of the Copyright Act of
`1976, copyright owners have the exclusive right to, among other things, reproduce,
`distribute, license, and publicly perform their works. Anyone wishing to obtain the
`right to do so, must get a license from the respective copyright owner in both of
`these copyrights, and pay agreed to royalties. The failure to do so constitutes
`copyright infringement. As discussed below, Pandora not only did not obtain any
`copyright in Engvall’s Works but admitted that it did not do so in Security and
`Exchange Commission (SEC) filings, and admitted that it would very likely face
`copyright infringement liability as a result. But Pandora did what most goliaths do:
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`it decided it would infringe now to ensure it had this very valuable intellectual
`property on its platform to remain competitive, and deal with the consequences
`later. Later is now.
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`STATEMENT OF FACTS
`9.
`For generations society has turned to comedy as a place of refuge to
`escape the troubles of their life and view their struggles through a filter of laughter.
`There’s something about watching comedians on stage talking about everyday
`problems that just transports a person from a place of sadness or frustration to one
`of hope and happiness, and Bill Engvall is a master at meeting his audience where
`they’re at in life.
`10. For the past thirty-four (34) years, Bill Engvall has helped millions of
`people laugh at everyday situations that would otherwise not be funny. From his
`early days on A Pair of Jokers with Rosie O’Donnell, to the Blue Collar Comedy
`Tour, which ran for six (6) years, Mr. Engvall has been a natural in the art of
`comedy, touching on everyday life topics such as marriage, parenting, and of
`course self-deprecation, which is everyone’s favorite.
`11. Mr. Engvall, a proud Texan, was named Best Male Standup comedian
`at the American Comedy Awards in 1992, and his comedy album Here’s Your Sign,
`was certified Platinum and peaked at #5 on the Billboard Country album chart. A
`man of many talents, Mr. Engvall was a semifinalist on Dancing with the Stars in
`2013, which is not an easy feat, as well as a disc jockey in Dallas Texas, and the
`game show host of Lingo on the Game Show Network.
`12. While Mr. Engvall is best known for his stand-up comedy, he has
`continued to expand his mark in the entertainment world as an actor, appearing in
`movies such as Delta Farce and Catching Faith, as well as television shows like
`The Golden Palace, Designing Women, Family Guy, and Last Man Standing with
`his long-time friend Tim Allen.
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`13. Mr. Engvall’s quick wit and easygoing personality, have drawn
`millions of fans to his comedy tours, and driven them to purchase his albums and
`watch his music videos. Yet, Defendant took and exploited the Works solely to
`make money while knowing it had no license and had not paid, and would not be
`paying, royalties to Mr. Engvall for the Works.
`14. According to www.pandora.com, Pandora is the largest digital
`broadcast and streaming music provider in the U.S. “providing a highly-
`personalized listening experience to approximately 70 million listeners and users
`each month” through “its mobile app, the web, and integrations with more than
`2,000 connected products.”
`15. One would think that entertainment giants like Pandora would honor
`the legacy of such an amazing talent, and instead it has chosen to illegally profit
`from the creative mind and literary/comedic works of Mr. Engvall.
`16.
`In fact, Defendant has made fifty-one (51) of the Works available for
`dissemination to the public via their digital broadcast radio service knowing full
`well that it did not possess a valid license to publicly perform the Works. (See
`Exhibit A). In addition to no license, it also made no royalty payments for the
`Works. The Works are contained on the albums, “Dorkfish”, “Here’s Your Sign”,
`“Now That’s Awesome (Live)”, and “Cheap Drunk: Autobiography”. Plaintiff has
`duly complied with all required provisions of the copyright laws of the United
`States applicable to the Works, including but not limited to, registering copyrights
`in and to said Works with the United States Copyright Office (see Exhibit A for
`applicable copyright registration numbers) on or about March 3, 1997, November
`5, 1997, October 19, 1998, July 26, 2002, and October 21, 2002 respectively.
`17. Further, it is required by law, and fully understood, that digital service
`providers, like Pandora, must also get a mechanical digital reproduction license
`from the owner of the underlying composition in order to make the underlying
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`composition of a recording available for reproduction and distribution through
`interactive streaming. This is true even where the digital service provider has a
`license to interactively stream a sound recording. Pandora made all fifty-one (51)
`of these Works available via its Pandora Premium interactive streaming service,
`also knowing full well that it did not possess a valid license to not only publicly
`perform his works but also no license to distribute and reproduce the Works.
`Pandora made no royalty payments for the public performance and no royalty
`payments for the reproduction of the Works. The end result is Pandora took
`Engvall’s Works, gained listeners, subscribers and market share with full
`knowledge it did not have licenses and made no royalty payments for the Works,
`to increase its stock price helping them to reorganize the company with Sirius XM
`(although the two companies remain to this day completely separate corporations)
`for billions all while depriving Engvall of his royalties and the benefits of his
`ongoing legacy.
`18. As of January 28, 2022, www.pandora.com advertised that Bill
`Engvall had 227,000 monthly listeners. If each listener listened to only one (1)
`available work per month, that’s 2,724,000 broadcasts or/interactive streams per
`year at a minimum. In fact, as of 2020, more than six hundred million streams
`(600,000,000) of the Works had streamed on Pandora alone. Unfortunately,
`Engvall has not received a fraction of a penny for any of these broadcasts or streams
`of the Works from Pandora.
`19. For years therefore Pandora has illegally made reproductions and
`digital broadcasts on its servers and provided streaming access to its users without
`a proper public performance license and, when applicable, a reproduction right
`license. This infringement continues on a daily basis as the Works are broadcast on
`Pandora radio and/or remain available for interactive streaming on Pandora
`Premium.
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`20. While it is commonplace in the music industry for companies like
`Pandora to enter into public performance licensing agreements with performance
`rights organizations like BMI and ASCAP for musical compositions, these entities
`do not license literary works. Therefore, it was the responsibility of Pandora to seek
`out the copyright owners and obtain valid licenses.
`21. Pandora only needed to contact one entity, Engvall, to obtain the
`required licenses. Or Pandora could have chosen not to use Engvall’s Works,
`particularly since it knew it did not have a license. Instead, it chose to infringe.
`22. Bill Engvall entered into a recording agreement with Warner Bros.
`Records, Inc. (“WBR”) dated May 1, 1996) (the “Engvall Warner Agreement”).
`Under the terms of the Engvall Warner Agreement, Mr. Engvall was obligated to
`provide his exclusive performance services to WBR, and WBR acquired exclusive
`ownership rights in the sound recordings of Mr. Engvall’s comedic performances
`in perpetuity.
`23. Mr. Engvall retained all of his exclusive rights in the Works.
`24. Pandora’s failure to obtain the necessary licenses for the Works, or
`pay any royalties for the Works, but to infringe by nonetheless exploiting the Works,
`has been willful. In Pandora’s own SEC 10K public filing with the SEC from 2011
`to 2017, three quarters of a decade, Pandora admitted in its Risk Factors ever year
`that it performs spoken-word comedy content “absent a specific license from any
`[] performing rights organization” and it has never obtained a license for the
`underlying literary works for the sound recordings of spoken-word comedy content
`that it streams. Pandora further admitted that it “could be subject to significant
`liability for copyright infringement and may no longer be able to operate under
`[their] existing licensing regime.” This admission was only removed, not so
`coincidentally, after Pandora’s transaction with Sirius XM Radio.
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`25. Pandora nonetheless did not even take the simplest of steps to ask
`Engvall or his representatives for a license for the Works. To the contrary,
`beginning in or about August of 2020, Word Collections (“WC”), a Spoken
`Word/Literary Works Collection Agency contacted Pandora in an effort to
`negotiate a licensing agreement for various copyright owners. From that initial
`contact and on an ongoing basis over the course of the following year, WC made
`numerous efforts on behalf of WC’s other spoken word/literary works clients,
`including on behalf of Engvall beginning in April 2021, to engage Pandora in good
`faith negotiations, to no avail.
`26. While Pandora’s counsel wrote on September 14, 2021 to advise that
`counsel would respond with Pandora’s position about unlicensed spoken word
`content appearing on Pandora’s platform, no substantive response from Pandora or
`its counsel has been sent or received.
`27. Further, WBR/Warner Music Group (“WMG”) in a letter to WC on
`September 3, 2021 informed that WMG grants rights only as to its recordings and
`does not grant rights as to any other types of material embodied in those recordings
`(whether mechanical rights, performance rights or otherwise). That principle
`applies to comedic material embodied in comedy recordings.
`28. To paraphrase Mr. Engvall’s
`famous “Here’s Your Sign”
`collaboration with Travis Tritt, why can't Pandora get the picture? Why don't they
`understand? We're not dealing with the planet of apes, we're talking about comedic
`works. So to all the digital service providers like Pandora . . . “Here’s Your Sign.”
`CAUSE OF ACTION
`(Copyright Infringement – 17 U.S.C. § 501)
`29. Plaintiff repeats and re-alleges the foregoing paragraphs as if fully set
`forth herein.
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`30. Plaintiff is the legal and beneficial owner of the United States
`copyrights in the Works, duly registered with the United States Copyright Office,
`(See Exhibit A), as discussed above.
`31. Defendant has directly, vicariously, and/or contributorily infringed
`and/or induced infringement of Plaintiff’s copyright in violation of 17 U.S.C. § 501.
`32. Defendant has publicly performed, broadcasted, and provided its
`listeners/users of the Works, as discussed hereinabove.
`33. Defendant’s acts were performed without authorization, license, or
`consent. Defendant’s unauthorized and unlicensed reproduction, distribution,
`public performance and display of the Works infringes Plaintiff’s exclusive rights
`in violation of the Copyright Act, 17 U.S.C. § 106 et. seq.
`34. Defendant’s infringement has been and continues to be, willful,
`intentional, purposeful, and with complete disregard to Plaintiff’s rights.
`35. As a direct and proximate result of Defendant’s infringement, Plaintiff
`has been irreparably harmed.
`36. Defendant has infringed Plaintiff’s copyright interest in the Works by
`making reproductions and digital broadcasts on its servers and provided streaming
`access to its users without a proper public performance and, when applicable,
`reproduction rights license.
`37. Plaintiff has received no royalties or payments for the Works
`embodied in the sound recording of the underlying literary compositions.
`38. Defendant has continued to market, exploit, reproduce, distribute, and
`publicly perform the Works through this day, which violates Plaintiff’s copyrights
`and are at issue in this lawsuit.
`39. Defendants had knowledge and have admitted that it did not and does
`not possess a valid public performance license for the Works at issue, and with that
`knowledge of infringement, continued to infringe upon Plaintiff’s copyrights.
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`40. The infringement is continuing as the Works continue to be exploited,
`performed, broadcast, and streamed across Defendant’s applicable platforms,
`and/or their agents.
`41. As a direct and proximate result of Defendant’s infringement,
`pursuant to 17 U.S.C. § 504(a)(1) and (b), Plaintiff is entitled to actual damages in
`addition to Defendant’s profits both domestically and relating to foreign sales of
`other exploitation of the Works that were distributed, performed, broadcast, or
`otherwise infringed domestically. Further, Plaintiff is entitled to a running royalty
`on all future exploitations of the Works following judgement in an amount to be
`determined.
`42.
`In the alternative to profits and actual damages, pursuant to 17 U.S.C.
`§ 504(c), Plaintiff is entitled to the maximum amount of statutory damages,
`$150,000 per copyrighted work for each act of copyright infringement, for a total
`of $7,650,000 ($150,000 times 51 registered Works).
`43. As a direct and proximate result of Defendant’s infringement, Plaintiff
`has incurred attorneys’ fees and costs which are recoverable pursuant to 17 U.S.C.
`§ 505.
`44. Defendant’s conduct has caused, is continuing to cause, and will
`further cause great damage to Plaintiff, which damages cannot be accurately
`measured in monetary terms, and therefore, unless enjoined by the Court, Plaintiff
`will suffer irreparable injury, for which Plaintiff is without adequate remedy at all.
`Accordingly, Plaintiff is entitled to a permanent injunction pursuant to 17 U.S.C. §
`502
`following
`judgment, prohibiting
`further
`infringement,
`reproduction,
`distribution, sale public performance, other use, or exploitation of Plaintiff’s
`copyright without a proper license.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for judgment and relief, as follows:
`45. For Judgment in favor of Plaintiff and against Defendant.
`46. For a declaration and finding that Defendant has willfully infringed
`Plaintiff’s copyrighted work in violation of the Copyright Act;
`47. For declaration and finding that Defendant is directly, vicariously,
`and/or contributorily liable for copyright infringement pursuant to 17 U.S.C. §
`504(a)(1) and (b), including a finding that Defendant is liable for actual damages,
`as well as for Defendant’s profits;
`48. For an accounting of all profits, income, receipts, or other benefits
`derived by Defendant from the production, copying, display, promotion,
`distribution, broadcast, public performance, or sale of products and services or
`other media, either now known or hereafter devised, that improperly or unlawfully
`infringe Plaintiff’s copyright pursuant to 17 U.S.C. § 504(a)(1) and (b);
`49. For statutory damages, upon election prior to final judgment in the
`alternative to actual damages and profits, for willful copyright infringement
`pursuant to 17 U.S.C. § 504(c);
`50. For costs of suit herein, including an award of attorneys’ fees pursuant
`to 17 U.S.C. § 505;
`51. For pre-judgment and post-judgment interest;
`52. For a running royalty and/or ownership share in the Infringing Work
`following judgment in an amount to be proven at trial, or in the alternative, for the
`entry of an injunction requiring Defendants, their officers, agents, servants,
`employees, representatives, successors, licensees, partners, attorneys, and assigns,
`and all persons acting in concert or participation with each or any one of them to
`be permanently enjoined from directly or indirectly infringing, reproducing,
`displaying, promoting, advertising, distributing, or selling any work that infringes,
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`contributorily infringes, or vicariously infringes Plaintiff’s rights in the work
`protected by the Copyright Act;
`53. For such other and further relief as the Court may deem just and proper.
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`DEMAND FOR JURY TRIAL
`Pursuant to Federal Rule of Civil Procedure 38(b), and otherwise, Plaintiff
`respectfully demands a jury trial on all issues raised in this complaint.
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 38(b), AND
`OTHERWISE, PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES
`RAISED IN THIS COMPLAINT.
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`Dated: February 7, 2022
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`Respectfully submitted,
`By: /s/ Richard S. Busch
`Richard S. Busch
`Attorney for Plaintiff
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`22
`23
`24
`25
`26
`27
`28
`
`