Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 1 of 28
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`and ALENA
`JAMES SAINT-AMOUR
`IVLEVA a/k/a JERRRA BLUES, doing
`business
`as SATORII, on behalf of
`themselves and all others similarly situated,
`
` Plaintiffs,
`
`
`
`THE RICHMOND ORGANIZATION, INC.
`(TRO INC.) and LUDLOW MUSIC, INC.,
`
` Defendants.
`
`
`
`
`v.
`
`
`
`
`
`
`C.A. No.
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`Plaintiffs, James Saint-Amour (“Saint-Amour”) and Alena Ivleva a/k/a Jerrra Blues
`
`(“Jerrra Blues”), doing business as Satorii (“Satorii”), on behalf of themselves and all others
`
`similarly situated, by their undersigned attorneys, as their Complaint against Defendants, The
`
`Richmond Organization, Inc. (TRO Inc.) (“TRO”) and Ludlow Music, Inc. (“Ludlow”) for: (1)
`
`declaratory judgment pursuant to 28 U.S.C. § 2201; (2) declaratory and injunctive relief and
`
`damages under 28 U.S.C. § 2202; (3) violations of New York General Business Law § 349; (4)
`
`breach of contract; (5) common law money had and received; and (5) rescission for failure of
`
`consideration, hereby alleges as follows:
`
`JURISDICTION AND VENUE
`
`1.
`
`The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. §
`
`1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory and other relief arising
`
`under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant to the Declaratory Judgment Act, 28
`
`U.S.C. §§ 2201 et seq.; and supplemental jurisdiction over the entire case or controversy
`
`pursuant to 28 U.S.C. § 1367.
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`and ALENA
`JAMES SAINT-AMOUR
`IVLEVA a/k/a JERRRA BLUES, doing
`business
`as SATORII, on behalf of
`themselves and all others similarly situated,
`
` Plaintiffs,
`
`
`
`THE RICHMOND ORGANIZATION, INC.
`(TRO INC.) and LUDLOW MUSIC, INC.,
`
` Defendants.
`
`
`
`
`v.
`
`
`
`
`
`
`C.A. No.
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`Plaintiffs, James Saint-Amour (“Saint-Amour”) and Alena Ivleva a/k/a Jerrra Blues
`
`(“Jerrra Blues”), doing business as Satorii (“Satorii”), on behalf of themselves and all others
`
`similarly situated, by their undersigned attorneys, as their Complaint against Defendants, The
`
`Richmond Organization, Inc. (TRO Inc.) (“TRO”) and Ludlow Music, Inc. (“Ludlow”) for: (1)
`
`declaratory judgment pursuant to 28 U.S.C. § 2201; (2) declaratory and injunctive relief and
`
`damages under 28 U.S.C. § 2202; (3) violations of New York General Business Law § 349; (4)
`
`breach of contract; (5) common law money had and received; and (5) rescission for failure of
`
`consideration, hereby alleges as follows:
`
`JURISDICTION AND VENUE
`
`1.
`
`The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. §
`
`1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory and other relief arising
`
`under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant to the Declaratory Judgment Act, 28
`
`U.S.C. §§ 2201 et seq.; and supplemental jurisdiction over the entire case or controversy
`
`pursuant to 28 U.S.C. § 1367.
`
`
`
`
`
`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 2 of 28
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`
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`2.
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`The Court has personal jurisdiction over Defendants and venue is proper in this
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`District under 28 U.S.C. §§ 1391(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in this
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`Judicial District where Defendants’ principal place of business is located and where they
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`regularly conduct business.
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`PARTIES
`
`3.
`
`Plaintiffs Saint-Amour and Jerrra Blues are individuals residing in Kings County,
`
`New York, doing business as Satorii. Under a disputed claim of copyright ownership by
`
`Defendants, on or about February 18, 2016, pursuant to 17 U.S.C. § 115, Plaintiffs paid the sum
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`of $45.50 to Defendants for a compulsory license (commonly known as a “mechanical license”)
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`to use the musical composition This Land is Your Land (“This Land” or the “Song”) to produce
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`and distribute digital phonorecords, as alleged more fully below.
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`4.
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`Defendant TRO is a New York corporation with its principal place of business
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`located at 266 W. 37th Street, 17th Floor, New York, New York 10018.
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`5.
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`Defendant Ludlow is a New York corporation with its principal place of business
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`also located at 266 W. 37th Street, 17th Floor, New York, New York 10018. Upon information
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`and belief, at all relevant times, Defendant TRO has wholly owned Defendant Ludlow as a
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`subsidiary and imprint.
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`6.
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`Throughout the Class Period (defined below), Defendants have falsely claimed
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`they own the exclusive copyright to This Land based upon the copyright Defendant Ludlow
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`registered in 1956.
`
`a.
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`Non-party BMI provides non-dramatic public performance licenses to
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`bars, clubs, websites, and many other venues. According to BMI’s website, its blanket
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`2
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 3 of 28
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`license includes This Land. As a BMI member and purported owner of the copyrights in
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`This Land, Defendants obtain a share of blanket license revenue that would otherwise be
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`paid to all other BMI members, in proportion to their songs’ survey shares. At all relevant
`
`times, Plaintiffs have been members of BMI.
`
`b.
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`Established in 1927, non-party Harry Fox Agency is the leading provider
`
`of rights management, licensing, and royalty services for the music industry in the United
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`States. It licenses, collects, and distributes royalties on behalf of musical copyright
`
`owners, and provides a variety of online tools to help music publishers manage their
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`catalogs. According to the Harry Fox Agency’s website, Defendant Ludlow owns the
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`copyright to This Land.
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`INTRODUCTION
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`7.
`
`This is an action to declare that, despite their claim to the contrary, Defendants do
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`not own a valid copyright to This Land and that the Song is dedicated to public use and in the
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`public domain; and for return of the unlawful licensing fees collected by Defendants pursuant to
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`their wrongful assertion of copyright ownership of the Song.
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`8.
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`According to the United States Copyright Office (“Copyright Office”), a “musical
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`composition consists of music, including any accompanying words, and is normally registered as
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`a work of the performing arts.” Copyright Office Circular 56A, “Copyright Registration of
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`Musical Compositions and Sound Recordings,” at 1
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`(Feb. 2012)
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`(available at
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`www.copyright.gov/circs/circ.56a.pdf). The author of a musical composition is the composer,
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`and the lyricist (if a different person). Id.
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`9.
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`10.
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`
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`This Land is one of the nation’s most famous and important folk songs.
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`Upon information and belief, the melody to This Land was taken from a Baptist
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`3
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 4 of 28
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`gospel hymn from the late 19th or early 20th century.
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`11.
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`Upon information and belief, the Song’s lyrics were written by American folk
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`singer Woody Guthrie (“Guthrie”) in 1940 in response to Irving Berlin’s song God Bless
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`America.
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`12.
`
`Guthrie published the Song in 1945 with a proper copyright notice, which created
`
`a federal copyright in the Song. The copyright to the 1945 publication was not renewed. As a
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`result, the copyright expired after 28 years, and the Song fell into the public domain in 1973.
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`13.
`
`Despite Guthrie’s 1945 publication of the Song, Defendant Ludlow purportedly
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`copyrighted the Song in 1956. Based on that 1956 copyright, Defendant Ludlow has wrongfully
`
`and unlawfully insisted it owns the copyright to This Land, together with the exclusive right to
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`control the Song’s reproduction, distribution, and public performances pursuant to federal
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`copyright law.
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`14.
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`For example, on July 23, 2004, Defendant Ludlow’s counsel wrote to counsel for
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`Jib Jab Media, Inc. (“Jib Jab”), regarding Jib Jab’s use of the Song. In that letter, Defendant
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`Ludlow’s counsel asserted that “Ludlow is the exclusive copyright owner of the classic folk song
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`‘This Land is Your Land’ written by the well-known folk artist Woody Guthrie.” The letter also
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`asserted that Jib Jab’s use of the Song’s melody and “the well-known lyrics ‘This land is your
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`land, this land is my land’ and ‘From California to the New York Island’” infringed Ludlow’s
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`copyright.
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`15.
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`Irrefutable documentary evidence shows that Defendants own no valid copyright
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`related to This Land. The popular verses of the Song were first published in 1945, and the
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`copyright in those verses ended no later than 1973 (if not earlier). Defendants never owned a
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`valid copyright to the Song’s pre-existing melody.
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`16.
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`Significantly, no court has ever adjudicated either the scope or validity of
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`Defendants’ claimed interest in This Land, nor in the Song’s melody or its familiar lyrics, which
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`are independent works.
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`17.
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`Defendants have unlawfully demanded and extracted licensing fees from those
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`unwilling or unable to challenge their false ownership claims.
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`18.
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`Plaintiffs, on behalf of themselves and all others similarly situated, seek a
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`declaration that Defendants do not own copyright in the melody of This Land, the familiar lyrics
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`to that Song, a variety of additional lyrics for that Song, or the combination of the melody and
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`any of those lyrics, and that the Song is dedicated to public use and is in the public domain.
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`Plaintiffs also seek monetary damages and restitution of all the unlawful licensing fees that
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`Defendants have improperly collected from Plaintiffs and all other Class members.
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`FACTUAL BACKGROUND
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`The Origin of the Song
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`19.
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`Guthrie did not write the melody to This Land. The Song’s melody is substantially
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`identical to that of a previously existing work, a Baptist gospel hymn which has been variously
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`called “Fire Song,” “When the World’s on Fire,” “What you gonna do when the world’s on fire,”
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`and “O My Loving Brother,” (“Fire Song”), all of those titles derived from lyrics associated with
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`that hymn. Guthrie did not write that hymn or its melody.
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`20.
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`Upon information and belief, Guthrie heard “Fire Song,” or a variation, before
`
`writing the lyrics for This Land and copied the melody for use with the lyrics for This Land.
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`21.
`
`Upon information and belief, Guthrie wrote the Song’s lyrics in or about 1940 to
`
`accompany the pre-existing melody of “Fire Song.”
`
`22.
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`Upon information and belief, Guthrie’s 1940 lyrics for This Land were as follows:
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`5
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 6 of 28
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`This land is your land, this land is my land
`From California to the New York Island,
`From the Redwood Forest, to the Gulf stream waters,
`This land was made for you and me.
`
`As I went walking that ribbon of highway
`And saw above me that endless skyway,
`And saw below me the golden valley, I said:
`This land was made for you and me.
`
` I
`
` roamed and rambled and followed my footsteps
`To the sparkling sands of her diamond deserts,
`And all around me, a voice was sounding:
`This land was made for you and me.
`
`Was a high wall there that tried to stop me
`A sign was painted said: Private Property,
`But on the back side it didn’t say nothing –
`This land was made for you and me.
`
`When the sun come shining, then I was strolling
`In wheat fields waving and dust clouds rolling;
`The voice was chanting as the fog was lifting:
`This land was made for you and me.
`
`One bright sunny morning in the shadow of the steeple
`By the Relief Office I saw my people –
`As they stood hungry, I stood there wondering if
`This land was made for you and me.
`
`Defendant Ludlow’s Disputed Copyright Claim
`
`23.
`
`In April, 1944, Guthrie recorded This Land for Moses Asch, the owner of
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`Folkways Records.
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`24.
`
`In 1945, Guthrie wrote and published a songbook, entitled “Ten 10 of Woody
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`Guthrie’s Songs Book One,” (“10 Songs”), which he sold for $0.25 per copy.
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`25.
`
`Guthrie offered 10 Songs for sale to the general public and sold copies of 10
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`Songs to the general public, as a general publication of that work, including This Land.
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`Underscoring the general nature of the publication of 10 Songs, the songbook itself contains
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`6
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 7 of 28
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`printed instructions about how to order additional copies of the book: “For more copies of this
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`song book: Woody Guthrie, 3520 Mermaid Avenue, Brooklyn, 24, New York.” Upon
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`information and belief, copies of this songbook are preserved in the collections of the Library of
`
`Congress, the Smithsonian Institution, and the Woody Guthrie Center in Tulsa, Oklahoma.
`
`26.
`
`The 1945 songbook 10 Songs was not registered with the Copyright Office prior
`
`to or subsequent to its general publication. However, the front cover of 10 Songs contained the
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`following copyright notice:
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`Copyright 1945 W. Guthrie
`
`27.
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`The melody and five verses of lyrics for This Land, together with the notation
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`“Words and music by W. Woody Guthrie,” were printed on page 8 of 10 Songs, as follows:
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`7
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 8 of 28
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`28.
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`Although 10 Songs was not registered with the Copyright Office, the initial 28-
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`year copyright term for 10 Songs, including This Land, began to run on April 3, 1945, when
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`Guthrie made a general publication of 10 Songs.
`
`29.
`
`The copyright for 10 Songs was not renewed. As a result, the copyright for 10
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`Songs, including This Land, expired on December 31, 1973, and the work, including This Land,
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`fell into the public domain at the end of that day.
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`30.
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`In 1951, with permission from Guthrie, Folkways Records, released a phonograph
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`entitled This Land is My Land; A Collection of American Folk Songs, which included a recording
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`of Guthrie performing This Land.
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`31.
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`The lyrics to all five verses, including the lyrics Guthrie published in 1945, were
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`printed on the liner notes for This Land is My Land, and again were published generally, without
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`any copyright notice for the lyrics (which were previously published in 1945) or any copyright
`
`notice for the liner notes, as follows:
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`This land is your land, this land is my land.
`From California to the New York island,
`From the redwood forest to the Gulf Stream waters,
`This land was made for you and me.
`
`As I went walking that ribbon of highway,
`I saw above me that endless skyway,
`I saw below me that golden valley,
`This land was made for you and me.
`
` I
`
` roamed and rambled, and I followed my footsteps,
`To the sparkling sands of her diamond deserts,
`And all around me a voice was sounding,
`This land was made for you and me.
`
`When the sun come shining, then I was strolling,
`And the wheat fields waving, and the dust clouds rolling,
`A voice was chanting as the fog was lifting,
`This land was made for you and me.
`
`
`
`
`8
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 9 of 28
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`
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`This land is your land, this land is my land.
`From California to the New York island,
`From the redwood forest to the Gulf Stream waters,
`This land was made for you and me.
`
`When the sun come shining, and I was strolling,
`The wheat fields waving, the dust clouds rolling,
`A voice was chanting and the fog was lifting,
`This land was made for you and me.
`
`32.
`
`Thus, to the extent there was any valid copyright to the lyrics of This Land in 10
`
`Songs, that copyright was divested in 1951 because they were published without notice of the
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`lyrics’ previous publication. In fact, they were published without any copyright notice at all.
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`33.
`
`Despite the fact that Guthrie published This Land in 1945 and that Folkways
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`published the lyrics to This Land in 1951 (without a copyright notice), on March 30, 1956,
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`Defendant Ludlow filed an Application for Registration of a Claim to Copyright (Reg. No.
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`EU432559) (the “1956 Application”) for an unpublished work with the Copyright Office.
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`34.
`
`In the 1956 Application for Reg. No. EU432559, Defendant Ludlow identified the
`
`title of the song as “This Land is Your Land,” and identified Guthrie as the author of the Song’s
`
`words and music. As alleged above, the Song’s music was not Guthrie’s original work.
`
`35.
`
`In paragraph 5 of the 1956 Application, Defendant Ludlow failed to disclose the
`
`fact that the Song had been previously published by Guthrie in 1945 and the lyrics had been
`
`previously published by Folkways in 1951. Thus, the copyright Defendant Ludlow obtained in
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`1956 was invalid.
`
`36.
`
`Additionally, Defendant Ludlow identified Guthrie as the author of the Song’s
`
`music in the 1956 Application when, in fact, he did not write the melody as an original
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`composition. Thus, for this additional reason, the copyright Defendant Ludlow obtained in 1956
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`was invalid.
`
`37.
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`
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`On December 15, 1958, Defendant Ludlow filed an Application for Registration
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 10 of 28
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`of a Claim to Copyright (Reg. No. EP126345) (the “1958 Application”) for a derivative work
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`with the Copyright Office.
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`38.
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`In the 1958 Application for Reg. No. EP126345, Defendant Ludlow identified the
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`title of the song as “This Land is Your Land,” and again identified Guthrie as the author of the
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`Song’s words and music. As alleged above, the Song’s melody was not Guthrie’s original work.
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`The 1958 Application for Reg. No. EP126345 claimed a copyright in new matter consisting only
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`of a new piano accompaniment.
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`39.
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`In the 1958 Application, Defendant Ludlow failed to disclose the fact that the
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`Song had been previously published by Guthrie in 1945 and the lyrics had been previously
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`published by Folkways in 1951. Thus, the copyright Defendant Ludlow obtained in 1958 was
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`invalid.
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`40.
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`Additionally, Defendant Ludlow identified Guthrie as the author of the Song’s
`
`music in the 1958 Application when, in fact, he did not write the melody as an original
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`composition. Thus, for this additional reason, the copyright Defendant Ludlow obtained in 1958
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`was invalid.
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`41.
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`Over a period of more than 50 years, Folkways Records released dozens of
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`phonograph records of music published by Defendant Ludlow, many of which were recorded by
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`Guthrie. Upon information and belief, in 1956, with permission from Defendant Ludlow or
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`Guthrie, Folkways Records, released a phonograph entitled Bound for Glory: The Songs and
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`Story of Woody Guthrie, which included a recording of This Land.
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`42.
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`The lyrics to all five verses of the Song, including the lyrics published by Guthrie
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`in 1945 and Folkways in 1951, were printed on the liner notes for Bound for Glory: The Songs
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`and Story of Woody Guthrie, and were published generally, without any copyright notice for the
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`10
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 11 of 28
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`lyrics (which were previously published in 1945, 1951, and 1956), as follows:
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`43.
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`Thus, if and to the extent Reg. No. EU432559 was valid and covered any part of
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`the lyrics published in the liner notes for Bound for Glory: The Songs and Story of Woody
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`Guthrie, the copyright to those lyrics was divested in 1956 because they were published without
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`
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`any copyright notice.
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`44.
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`Upon information and belief, in 1961, again with permission from Defendant
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`Ludlow or Guthrie, Folkways Records re-released the 1951 phonograph record under the title
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`This Land is My Land, Songs to Grow On, Vol. 3: American Work Songs (“This Land is My
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`Land”), which included the same recording of This Land as the 1951 phonograph record. The
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`lyrics to all five verses, including the lyrics that Guthrie published in 1945 and that Folkways
`
`published in 1951, were again printed on the liner notes for This Land is My Land, and again
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`11
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 12 of 28
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`were published generally, without any copyright notice for the lyrics (which were previously
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`published in 1945, 1951, and 1956), as follows:
`
`This land is your land, this land is my land.
`From California to the New York island,
`From the redwood forest to the Gulf Stream waters,
`This land was made for you and me.
`
`As I went walking that ribbon of highway,
`I saw above me that endless skyway,
`I saw below me that golden valley,
`This land was made for you and me.
`
` I
`
` roamed and rambled, and I followed my footsteps,
`To the sparkling sands of her diamond deserts,
`And all around me a voice was sounding,
`This land was made for you and me.
`
`When the sun come shining, then I was strolling,
`And the wheat fields waving, and the dust clouds rolling,
`A voice was chanting as the fog was lifting,
`This land was made for you and me.
`
`This land is your land, this land is my land.
`From California to the New York island,
`From the redwood forest to the Gulf Stream waters,
`This land was made for you and me.
`
`When the sun come shining, and I was strolling,
`The wheat fields waving, the dust clouds rolling,
`A voice was chanting and the fog was lifting,
`This land was made for you and me.
`
`
`
`45.
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`Thus, if and to the extent Reg. No. EU432559 was valid and covered any part of
`
`the lyrics published in the liner notes for This Land is My Land, the copyright to those lyrics was
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`divested again in 1961 because they were published without copyright notice.
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`46.
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`On July 21, 1970, Defendant Ludlow filed an Application for Registration of a
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`Claim to Copyright (Reg. No. EP276540) (the “1970 Application”) for a published musical
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`composition with the Copyright Office.
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`47.
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`In the 1970 Application for Reg. No. EP276540, Defendant Ludlow identified the
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 13 of 28
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`title of the song as “This is Your Land,” and identified Guthrie as the author of the Song’s words
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`and music, and claimed a copyright in a guitar arrangement composed as “new matter” by
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`Claudia Block as a work for hire and added words. Reg. No. EP276540 covers only the guitar
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`arrangement composed by Claudia Block and the added words, not the Song’s melody or
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`familiar lyrics.
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`48.
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`In the 1970 Application, Defendant Ludlow again failed to disclose the fact that
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`the Song had been previously published by Guthrie in 1945 and the lyrics had been previously
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`published by Folkways in 1951. Thus, the copyright Defendant Ludlow obtained in 1970 was
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`invalid.
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`49.
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`Additionally, Defendant Ludlow identified Guthrie as the author of the Song’s
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`words and music in the 1970 Application when, in fact, he did not write the melody as an
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`original composition. Thus, for this additional reason, the copyright Defendant Ludlow obtained
`
`in 1970 was invalid.
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`50.
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`On May 3, 1972, Defendant Ludlow filed an Application for Registration of a
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`Claim to Copyright (Reg. No. EP301279) (the “1972 Application”) for a published musical
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`composition with the Copyright Office.
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`51.
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`In the 1972 Application for Reg. No. EP301279, Defendant Ludlow identified the
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`title of the song as “This Land is Your Land,” and identified Guthrie as the author of the Song’s
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`words and music. The 1972 Application claimed a copyright in only “some words” as “new
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`matter.”
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`52.
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`Based upon the purported renewal of Reg. No. EP301279 on July 10, 2000, the
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`words claimed as new matter were two verses as follows:
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`As I went walking I saw a sign there
`And on the sign it said “No Trespassing.”
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`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 14 of 28
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`But on the other side it didn’t say nothing,
`That side was made for you and me.
`
`In the shadow of the steeple I saw my people
`By the Relief Office I seen my people
`As they stood there hungry, I stood there asking
`Is this land made for you and me?
`
`Therefore, Reg. No. EP301279 covers only those new lyrics.
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`As alleged above, the Song’s music was not Guthrie’s original work.
`
`53.
`
`54.
`
`In the 1972 Application, Defendant Ludlow again failed to disclose the fact that
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`the Song had been previously published by Guthrie in 1945 and the lyrics had been previously
`
`published by Folkways in 1951. Thus, the copyright Defendant Ludlow obtained in 1970 was
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`invalid.
`
`55.
`
`Additionally, Defendant Ludlow again identified Guthrie as the author of the
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`Song’s words and music in the 1972 Application when, in fact, he did not write the melody as an
`
`original composition. Thus, for this additional reason, the copyright Defendant Ludlow obtained
`
`in 1972 was invalid.
`
`Plaintiff’s Use of This Land
`
`56.
`
`Satorii is a band based in New York City. Saint-Amour is Satorii’s dummer and
`
`Jerrra Blues is Satorii’s lead singer.
`
`57.
`
`Section 115 of the Copyright Act, 17 U.S.C. § 115, provides for a compulsory
`
`license for the distribution of phonorecords and digital phonorecord deliveries (i.e., web-based
`
`“downloads”) of musical compositions. Failure to obtain such a license prior to distribution of a
`
`cover version of a song constitutes copyright infringement subject to the full remedies of the
`
`Copyright Act.
`
`58.
`
`Accordingly, on February 18, 2016, Plaintiff Satorii provided a Notice of
`
`
`
`14
`
`
`
`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 15 of 28
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`Intention to Obtain Compulsory License to Defendants and paid them the sum $45.50 for a
`
`mechanical license to produce and distribute 500 copies of the Song as a digital phonorecord.
`
`59.
`
` Plaintiffs recorded a version of This Land, which is available for sale on iTunes and on
`
`other sites such as cdbaby (http://www.cdbaby.com/Artist/Satorii).
`
`60.
`
`Plaintiffs’ version of This Land has the same melody as Guthrie’s 1945
`
`publication and includes the following lyrics:
`
`This land is your land, this land is my land
`From California to New York Island
`From Redwood Forest to Gulf Stream Waters
`This land was made for you and me
`
`This land is your land, this land is my land
`From California to New York Island
`From Redwood Forest to Gulf Stream Waters
`This land was made for you and me
`
`As I was walking that ribbon of highway
`I saw above me that endless skyway
`I saw below me that golden valley
`This land was made for you and me
`
`I’ve roamed and rambled and I followed footsteps
`In the sparkling sands of her diamond deserts
`And all around me their voice was sounding
`This land was made for you and me
`
`Nobody living can ever stop me
`As I go walking my freedom highway
`Nobody living can make me turn back
`This land was made for you and me
`
`This land is your land, this land is my land
`From California to New York Island
`From Redwood Forest to Gulf Stream Waters
`This land was made for you and me
`
`In addition to the cover version of the Song that Satorii recorded using the both
`
`61.
`
`the melody and the lyrics that Defendants claim to own, Satorii recorded a different version of
`
`
`
`15
`
`
`
`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 16 of 28
`
`This Land using a completely different melody but the same disputed lyrics. Plaintiffs cannot
`
`risk releasing that version of their sound recording without permission from Defendants to create
`
`a derivative work, because the change in the Song’s melody would not entitle Plaintiffs to a
`
`compulsory mechanical license, thus exposing Plaintiffs to substantial potential statutory
`
`penalties, attorneys’ fees, and costs if the Defendants’ disputed copyright claim to the Song were
`
`upheld.
`
`62.
`
`Satorii also desires to produce a music video of the Song, but Plaintiffs cannot
`
`produce and release a music video of the Song without purchasing a synchronization license
`
`from Defendants because releasing a music video of the Song without a synchronization license
`
`would expose Plaintiffs to the same substantial penalties, fees and costs as alleged above.
`
`CLASS ALLEGATIONS
`
`63.
`
`Plaintiff brings this action under Federal Rules of Civil Procedure 23(a) and (b) as
`
`a class action on behalf of themselves and all others similarly situated for the purpose of
`
`asserting the claims alleged in this Complaint on a common basis.
`
`64.
`
`The Class is comprised of all persons or entities, excluding Defendants and their
`
`directors, officers, employees, and affiliates, who entered into a license with Ludlow, or paid
`
`Ludlow, directly or indirectly, a royalty or licensing fee for This Land at any time since 2010,
`
`and until Defendants’ unlawful conduct as alleged herein has ceased.
`
`65.
`
`Although Plaintiff does not know the exact size of the Class or the identities of all
`
`members of the Class, upon information and belief that information can be readily obtained from
`
`the books and records of Defendants. Plaintiff believes that the Class includes hundreds if not
`
`thousands of persons or entities who are widely geographically disbursed. Thus, the proposed
`
`Class is so numerous that joinder of all members is impracticable.
`
`
`
`16
`
`
`
`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 17 of 28
`
`The claims of all members of the Class involve common questions of law and fact
`
`66.
`
`including:
`
`a.
`
`whether the 1945 publication of This Land constituted a general
`
`publication of the Song;
`
`b.
`
`whether any proper renewal application was filed for This Land in 1973,
`
`and if not, whether the Song has fallen into the public domain as a result;
`
`c.
`
`whether the 1951 publication of the lyrics to This Land by Folkways
`
`divested Guthrie of the 1945 copyright to This Land in 10 Songs;
`
`d.
`
`whether the copyrights Defendants registered in 1956, 1958, 1970, and
`
`1972 are invalid because they were procured fraudulently;
`
`e.
`
`whether Defendants obtained any rights from the original author(s) of the
`
`prior work(s) from which This Land is derived and, if so, what rights were obtained;
`
`f.
`
`whether the copyright claimed by Defendants over the melody is valid
`
`because the melody was not original to the author;
`
`g.
`
`whether the familiar lyrics and the lesser-known lyrical verses to This
`
`Land were forfeited because they were published with permission on numerous occasions
`
`without any copyright notice;
`
`h.
`
`i.
`
`j.
`
`whether the 1956 copyright is valid;
`
`whether This Land is in the public domain and dedicated to public use;
`
`whether Defendants are the exclusive owners of the copyright to This
`
`Land and are thus entitled to all of the rights conferred in 17 U.S.C. § 102;
`
`k.
`
`l.
`
`whether Defendants have the right to collect fees for the use of This Land;
`
`whether Defendants have violated the law by demanding and collecting
`
`
`
`17
`
`
`
`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 18 of 28
`
`fees for the use of This Land despite not having a valid copyright to the Song; and
`
`m.
`
`whether Defendants are required to return unlawfully obtained payments
`
`to Plaintiff and the other members of the Class and, if so, what amount is to be returned.
`
`67. With respect to Counts Three through Six, the common questions of law and fact
`
`predominate over any potential individual issues.
`
`68.
`
`Plaintiffs’ claims are typical of the claims of all other members of the Class.
`
`Plaintiff’s interests do not conflict with the interests of any other member of the Class, in that
`
`Plaintiff and the other members of the Class were subjected to the same unlawful conduct.
`
`69.
`
`Plaintiffs are committed to the vigorous prosecution of this action and have
`
`retained competent legal counsel experienced in class action and complex litigation.
`
`70.
`
`Plaintiffs are adequate representatives of the Class and, together with their
`
`attorneys, are able to and will fairly and adequately protect the interests of the Class and its
`
`members.
`
`71.
`
`A class action is superior to other available methods for the fair, just, and efficient
`
`adjudication of the claims asserted herein. Joinder of all members of the Class is impracticable
`
`and, for financial and other reasons, it would be impractical for individual members of the Class
`
`to pursue separate claims.
`
`72. Moreover, the prosecution of separate actions by individual members of the Class
`
`would create the risk of varying and inconsistent adjudications, and would unduly burden the
`
`courts.
`
`73.
`
`action.
`
`
`
`
`
`Plaintiffs anticipate no difficulty in the management of this litigation as a class
`
`
`
`18
`
`
`
`Case 1:16-cv-04464-PKC Document 1 Filed 06/14/16 Page 19 of 28
`
`COUNT ONE
`
`DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201
`
`Plaintiffs repeat and reallege paragraphs 1 through 73 above as though they were
`
`74.
`
`fully set forth herein.
`
`75.
`
`Plaintiffs bring this claim individually on behalf of themselves and on behalf of
`
`the Class pursuant to Federal Rule of Civil Procedure 23(b)(2).
`
`76.
`
`Plaintiffs seek adjudication of an actual controversy arising under the Copyright
`
`Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants’ purported copyright claim to This
`
`Land. Plaintiffs seek the Court’s declaration that the Copyright Act does not bestow upon
`
`Defendants the rights they have asserted and have enforced against Plaintiffs and the other
`
`members of the Class. This is because either: (1) the 1945 publication of This Land by Guthrie
`
`was a general publication that was not renewed in 1973 and therefore expired; (2) the 1951
`
`publication of the lyrics to This Land by Folkways without any copyright notice divested Guthrie
`
`of any copyright he had in the song’s lyrics; (3) the melody to the Song that was purportedly
`
`copyrighted in 1956 was not original to Guthrie; (4) Defendants fraudulently obtained the
`
`copyrights in 1956, 1958, 1970, and 1972, and therefore those copyrights are invalid; and (5) the
`
`lyrics to the Song that were purportedly copyrighted in 1956 were published without any
`
`copyright notice in 1951, 1956, and 1961, and thus any copyright to them was forfeited.
`
`77.
`
`Defendants falsely assert that they are entitled to control the use of the musical
`
`composition This Land and are entitled to mechanical, synchronization, and pe
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