Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 1 of 51
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`___________________________________________________________________________
`
`TIMOTHY GRIMES
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`SONY CORPORATION,
`SONY CORPORATION OF AMERICA,
`SONY ENTERTAINMENT, INC.
`
`JULIE SWIDLER and
`
`
`WADE LEAK
`
`
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`;
`:
`:
`:
`
`
` Civil Action No.:
`
`
`
`COMPLAINT
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff, TIMOTHY GRIMES, by his attorneys, VERNER SIMON, as and for his Complaint
`
`against the Defendants, SONY CORPORATION, SONY CORPORATION OF AMERICA,
`
`SONY ENTERTAINMENT, INC., JULIE SWINDLER and WADE LEAK, states as follows:
`
`
`
`
`1.
`
`STATEMENT OF THE CASE
`
`This is a case of a major record label’s callous indifference to the rights and interests of a
`
`powerless recording artist that exceeds what is acceptable behavior to such a degree that
`
`the officers of the record label should be held accountable for their deliberate and willful
`
`gross negligence and intentional misconduct.
`
`2.
`
`In 1989, The Poor Righteous Teachers (“PRT”) brought their brand of “Holy Intellect” to
`
`the emerging rap community which was then a budding industry. Profile Records, the
`
`record label that signed PRT, was so profitable that it was sold to Arista Records in 1997
`
`– Arista being the successful creation of fabled music icon, Mr. Clive Davis. Arista Rec-
`
`ords was thereafter quickly absorbed by Sony Entertainment as the major entertainment
`
`companies embraced the profitable rap and hip-hop music markets.
`
`
`
`

`

`
`
`3.
`
`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 2 of 51
`
`Despite full knowledge and fiduciary duties to PRT, the large companies, Arista and
`
`Sony simply ignored their duties to account and pay royalties to PRT. Ultimately, based
`
`upon ample and detailed notice to the Sony Defendants and Sony’s officers as set forth
`
`below, the Sony Defendants acquired a fiduciary duty as a matter of common law to protect
`
`the plaintiff’s property and monies.
`
`4.
`
`In 2009, PRT terminated the agreement with Sony, nine (9) months after PRT’s attorney
`
`re-supplied Sony with PRT’S recording agreement and royalty information that Sony
`
`claimed they did not have, and Sony still continued failing to act or intentionally refused
`
`to act.
`
`5.
`
`Instead, Sony continued to exploit PRT’s recordings and continued to make tremendous
`
`amounts of money from PRT’s music as well as hundreds of similarly situated black, poor
`
`and powerless recording artists.
`
`6.
`
`Further, Sony’s officer’s in charge of this aspect of Sony’s billion dollar empire deliber-
`
`ately turned a blind eye to the contractual, common law and equitable obligations of the
`
`giant company, intentionally or with gross negligence, all the while that Sony rakes in
`
`millions of dollars from the fruits of PRT and other artists’ labors. While the artists were
`
`starved of what was legally due to them, Sony and its officers enjoyed high stock prices,
`
`huge corporate coffers, bloated salaries, industry benefits and false accolades.
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 3 of 51
`
`
`
`JURISDICTION AND VENUE
`
`7.
`
`This Court has federal jurisdiction over the subject matter of this action pursuant to 28
`
`U.S.C. §§ 1331 and 1338(a) because this action alleges violations of federal statutes in-
`
`cluding the Copyright Act of 1976, 17 U.S.C. §§101, et seq., and the Declaratory Judgment
`
`Act, 28 U.S.C. §2201 and §2202.
`
`8.
`
`Venue is proper in this district pursuant to 28 U.S.C. §1391(a) and (b) because all of the
`
`Defendants conduct substantial business within the State of New York and have infringed
`
`Plaintiff’s copyright within the State of New York as described herein, a substantial part
`
`of the events or omissions giving rise to Plaintiff’s claims occurred in the State of New
`
`York, and under 28 U.S.C. §1400(a) since the misconduct by the Defendants occurred
`
`within this district.
`
`
`
`9.
`
`THE PARTIES
`
`Plaintiff, TIMOTHY GRIMES (“Grimes”), an individual born in 1970, and is a citizen of
`
`the state of Georgia with an address located at 1759 Vertex Drive, Snellville, GA 30078
`
`10.
`
`Defendant SONY CORPORATION (“Sony”) is a Japanese corporation headquartered in
`
`Konan, Minato, Tokyo and doing business in the state of New York.
`
`11.
`
`SONY ENTERTAINMENT, INC. (“Sony Ent.”) is a wholly owned subsidiary of SONY
`
`formed under the laws of the state of Delaware and located at 25 Madison Ave., New
`
`York, NY 10010 and is a global entertainment company established in 2012 and focusing
`
`on most of SONY's motion picture, television and music businesses.
`
`12.
`
`SONY CORPORATION OF AMERICA (“Sony Of America”), is a wholly owned subsid-
`
`iary of SONY formed under the laws of the state of Delaware and located at 25 Madison
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 4 of 51
`
`
`
`Ave., New York, NY 10010 and from where it manages Sony Ent. [ Sony, Sony Ent. and
`
`Sony Of America may also be collectively referred to here as the “Sony Defendants” or
`
`“Sony”].
`
`13.
`
`Upon information and belief, as of 2019 Sony is currently the world's 6th largest entertain-
`
`ment company at $14.1B, alongside The Walt Disney Company ($55.13B), Com-
`
`cast (inc. NBCUniversal $33B), AT&T (inc. WarnerMedia $31.27B), Bertels-
`
`mann (€17.96b/$20.30b), Vivendi (€13b/$14.70b), CBSCorporation ($13.69B), and Via-
`
`com ($13.26B).
`
`14.
`
`Upon information and belief, the Sony Defendants are all registered to and transact busi-
`
`ness in the State of New York and have entered into contracts in the State of New York to
`
`supply services in the State of New York, and committed tortious acts complained of herein
`
`in the State of New York, causing injury to Plaintiff within New York State.
`
`15.
`
`Defendant JULIE SWIDLER, ESQ. (“Swindler”) joined Sony Ent. in 1988 and in 2008
`
`was appointed Executive Vice President and Global General Counsel of Sony Ent. Prior
`
`to joining Sony, Swidler worked for Arista Records.
`
`16.
`
`Swidler is also a board member of the Recording Industry Association of America (RIAA),
`
`a board member of the UJA Federation of NY’s Music for Youth Initiative, and in 2017
`
`was honored with a lifetime achievement award by the T.J. Martel Foundation, the music
`
`industry’s leading foundation that funds medical research. Upon information and belief,
`
`these public overtures and corresponding accolades received by Swidler are intentionally
`
`sought to cover the actual business conduct of Swidler and the nefarious, low-brow, mis-
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 5 of 51
`
`
`
`sion of the Sony Defendants and Swidler to squeeze and extract, through outrageously cal-
`
`lous misconduct, every penny possible from poor artists of color who do not control the
`
`licensing rights on the intellectual property.
`
`17.
`
`Defendant WADE LEAK, ESQ. (“Leak”) is Senior Vice President, Deputy General Coun-
`
`sel, Chief Compliance, Ethics and Privacy Officer of Sony Entertainment.
`
`18.
`
` Leak, who has worked for Sony Ent. since 1999, manages all Sony U.S. litigation and
`
`provides Sony subsidiary music label companies with day to day advice on copyright and
`
`on-line marketing issues. Leak also head up Sony Music “Out Loud”, an employee affinity
`
`group which encourages LGBT equality. Upon information and belief, these public over-
`
`tures and corresponding accolades received by Leak are intentionally sought to cover the
`
`actual business conduct of Leak and the nefarious, low-brow, mission of the Sony Defend-
`
`ants and Leak to squeeze and extract, through outrageously callous misconduct, every
`
`penny possible from poor artists of color who do not control the licensing rights on the
`
`intellectual property.
`
`
`
`
`
`STATEMENT OF MATERIAL FACTS
`
`RAP IS BIG BUSINESS.
`
`19. While today, rap or hip-hop music (as it is also referred to), is as common as rock music,
`
`country, classical or any other music genre, in the late 1980’s rap was still in its nascent
`
`stages.
`
`
`
`
`
`
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 6 of 51
`
`PROFILE RECORDS NYC
`
` An early proponent of rap music was a successful independent record label in New York
`
`City called Profile Records (“Profile”). Profile was founded and owned by Cory Robbins
`
`(“Robbins”) and Steven Plotnicki (“Plotnicki”) in 1981.
`
`
`
`20.
`
`
`
`PRT
`
`21.
`
`In 1989, Profile signed a young rap group from Trenton New Jersey called the Poor Right-
`
`eous Teachers (“PRT”) to an exclusive recording agreement and co-publishing agreement
`
`with Profile’s publishing designee, Pro-toons. (the “Profile Agreement”). The signatories
`
`of the Profile Agreement, on behalf of PRT consisted of Plaintiff Timothy Grimes p/k/a
`
`Wise Intelligent, Kerry Williams p/k/a Culture Freedom, Scott Phillips p/k/a DJ Father
`
`Shaheed (deceased in 2014), and producer Anthony Depula p/k/a Tony D (deceased in
`
`2009).1
`
`
`
`THE PROFILE AGREEMENT
`
`22.
`
`The Profile Agreement with PRT was a long-term, one-sided adhesion agreement in which
`
`no negotiation of any type took place.
`
`23.
`
`Although the Profile Agreement was reviewed and marked-up with requested changes by
`
`a “rookie" music attorney named Kevon Glickman, Esq. (“Glickman”), who also served as
`
`PRT’s executive producer, the Profile Agreement drafted by Profile’s veteran entertain-
`
`ment attorney Mark Levinsohn, Esq. was presented to PRT on a “take it or leave it” basis.
`
`
`
`
`1 Plaintiff Grimes has taken assignment all PRT’s ownership rights.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 7 of 51
`
`
`
`
`
`“HOLY INTELLECT”
`
`24.
`
`PRT took the Profile deal. For the first Album “Holy Intellect” released in 1990, PRT
`
`received a meager total advance of $15,000 which they used to pay for all recording costs,
`
`living expenses, and producer and other professional fees.
`
`
`
`
`
`“ROCK DIS FUNKY JOINT” IS A HIT
`
`25.
`
` “Holy Intellect”, driven by the strength of the single “Rock Dis Funky Joint”, at NYC
`
`influential radio station ‘Hot 97’, and video which was a staple on popular cable TV show
`
`“Yo MTV Raps”, sold over 400,000 albums in vinyl, cassette, and CD formats in the first
`
`couple weeks of its sale generating a tremendous windfall profit for Robbins and Plotnicki,
`
`whose Profile Records owned the master recordings and the publishing through their Pro-
`
`Toons, as well as being partner’s in Profile’s distributor, Landmark Distribution, adding
`
`another level of profit to Robbins and Plotniki’s bottom line.
`
`
`
`
`
`PROFILE IS SOLD TO ARISTA
`
`26.
`
` Plotnicki and Robbins relationship ended in an acrimonious lawsuit against each other
`
`after which Arista Records bought what was left of Profile some time in 1997 or 1998.
`
`27.
`
` Prior to Profile’s sale to Arista, when Defendant Swidler was a high-ranking officer at
`
`Arista, PRT, released numerous singles, as well as four (4) profitable and critically ac-
`
`claimed consciousness-raising Albums:
`
`(i) “Holy Intellect”, 1990
`(ii) “Pure Poverty”, 1991
`(iii) “Black Business”, 1993
`(iv) “New World Order”, 1996
`
`
`
`
`
`
` These four (4) Albums were part of the sale of Profile to Arista.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 8 of 51
`
`
`
`
`
`
`
`PROFILE SELLS OR ASSIGNS PLAINTIFF’S PUBLISHING TO UNIVERSAL
`
`28.
`
`Upon information and belief, at some point in time, Profile also sold or assigned Pro-
`
`Toons’ publishing rights and interests in and to the PRT publishing to Universal Music
`
`Publishing (“Universal”).
`
`29.
`
`Plaintiff has never received any notice of such assignment or sale and has no actual
`
`knowledge of such a transaction.
`
`30.
`
`If Pro-toons did assign its publishing interests to Universal, then Sony would have an ob-
`
`ligation as the record company to pay publishing royalties to Universal and then Universal would
`
`in turn have the obligating to account and pay publishing royalties to Plaintiff pursuant to the
`
`Profile Agreement.
`
`31.
`
`Plaintiff has never received any royalty information or other information related to its pub-
`
`lishing from Sony Ent. nor Universal and Grimes is the valid copyright owner of all of PRT’s
`
`lyrics. (See Exhibit A, copyright registration).
`
`32.
`
` These PRT recordings and the publishing related thereto are the subject of this lawsuit.
`
`
`
`
`
`33.
`
`ARISTA IS SOLD TO BMG/ BMG IS SOLD TO SONY
`
`Upon information and belief, BMG acquired the assets and liabilities of Arista Records’
`
`founded by Clive Davis in 1974, on a date unknown to Plaintiff.
`
`34.
`
` Upon information and belief, Sony formed a joint venture with BMG in 2004 and Sony
`
`thereafter acquired all of BMG’s assets and liabilities as part of Sony’s joint venture buy-
`
`out of BMG’s share some time in 2008.
`
`
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 9 of 51
`
`
`
`
`
`PRT NOTIFIES SONY THEY ARE IN BREACH
`
`35.
`
` On or around July 22, 2008, Glickman contacted Sony on behalf of PRT, placing Sony on
`
`notice that Sony was exploiting PRT’s recordings and publishing and not accounting to
`
`them.
`
`36.
`
`At the time, Glickman was not unknown to and had previous contact with certain high-
`
`level Sony executives/officers for the following reasons.
`
`37.
`
`Between 1993 and 1999 Glickman was General Counsel and Head of Business Affairs for
`
`Ruffhouse Records (“Ruffhouse”), a successful joint venture with SONY which generated
`
`sales of over 100 Million Albums by Grammy award winning artists, including Ms. Lauryn
`
`Hill, The Fugees, Wyclef Jean, Nas, Cypress Hill, Kris Kross, amongst others. In 1999,
`
`Ruffhouse was purchased by Sony Of America.
`
`38.
`
` In addition, Glickman was also litigation counsel to the classic R&B group, The Delfonics,
`
`in a 25-year-old royalty dispute with Clive Davis and Sony which settled some time in
`
`2006 or 2007.
`
`39.
`
` Swidler and Leak oversaw Sony’s interest in this particularly bitter dispute that caused the
`
`split up of the Delfonics and the estrangement of brothers Wilbert and William Hart, 2/3rds
`
`of the Delfonics group. The third Delfonic, Randy Cain, died a short time after the con-
`
`clusion of the Sony litigation. Upon information and belief, the business model of the Sony
`
`Defendants, and Swidler’s and Leak’s implementation of the Sony mission as set forth in
`
`paragraphs 16 and 18 above, includes intentionally delaying the resolution of disputes over
`
`intellectual property rights with artists of color who lack financial resources to create lev-
`
`eraged advantages, such as the ultimate death of such artists by attrition over time.
`
`
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 10 of 51
`
`
`
`
`
`SONY’S BAD ACTORS
`
`40.
`
`Upon information and belief, during the Delfonics’ lawsuit Glickman had many commu-
`
`nications with Swidler and Leak, so when it came time to protect the interests of PRT,
`
`Glickman contacted Swidler, (amongst appropriate employees in the royalty department),
`
`only to be repeatedly stonewalled for a period to last much longer than the breach and cure
`
`provisions contained in the Profile Agreement.
`
`41. More specifically, Glickman was first told that Sony did not have the Profile Agreement
`
`nor any of the royalty provisions or songwriting/publishing splits (the “splits”).
`
`42.
`
`Glickman thereafter supplied to Sony the “missing” Profile Agreement and reconstructed
`
`for Sony’s royalty department, the “unknown” splits.
`
`43.
`
` Nevertheless, nine (9) months later, Sony still claimed they did not have the necessary
`
`information and/or still had not entered any information supplied by Glickman into their
`
`royalty systems and refused to take any responsibility toward their obligations to PRT, as
`
`successor in interest to the assets and liabilities acquired through Sony’s acquisition of
`
`Arista/BMG.
`
`
`
`
`
`SONY FAILS TO CURE AND PRT TERMINATES
`
`44.
`
`Around April 16, 2009, nine (9) months after: (i) Sony’s receipt of PRT’s notice of its
`
`breach; (ii) Sony’s receipt from PRT, a second time, of what Sony claimed were “un-
`
`known” royalty and publishing splits [that Sony should have already had]; (iii) Sony’s fail-
`
`ure to make any attempt to cure their breach after being supplied with the “missing” Profile
`
`Agreement and “unknown” splits; and, (iv) Sony’s misrepresentation that they sent infor-
`
`mation to PRT [when they really did not], PRT terminated the Profile Agreement. (See
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 11 of 51
`
`
`
`Exhibit B, attached email communications between Glickman and Sony executives be-
`
`tween July 22, 2008 and April 16, 2009).
`
`45.
`
`Shortly after April 16, 2009, Glickman received a phone call from Leak, inquiring as to the
`
`status of the PRT claims.
`
`46.
`
`After Glickman explained the events involving Sony’s breach and failure to cure, Leak
`
`stated that he agreed with Glickman and led Glickman to believe that he had acquiesced
`
`that Sony indeed failed to cure its breaches.
`
`47.
`
`Glickman has never heard again from Leak, Swidler nor any other representative from
`
`Sony thereafter in relation to PRT, despite Sony having Glickman’s contact information
`
`and Glickman supplying to Sony all the PRT agreements and splits that Sony claimed was
`
`missing.
`
`48.
`
`Thus it appears that the Defendants intentionally implemented the Sony Defendant’s busi-
`
`ness model of and Swidler’s and Leak’s implementation of the Sony mission as set forth
`
`in paragraphs 16 and 18 above, to intentionally delay the resolution of the PRT claims
`
`about the PRT intellectual property rights to create a leveraged advantage by attrition over
`
`time.
`
`
`
`
`
`SONY CONTINUES TO EXPLOIT PRT
`
`49.
`
`Despite explicit and detailed notice of the PRT claims concerning the subject intellectual
`
`property rights, as of the filing of this lawsuit, Sony is still exploiting the PRT recordings
`
`and compositions on a daily and continuing basis despite having no legal rights to do so.
`
`It is inconceivable that Sony is not aware that it has no legal rights to the PRT properties.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 12 of 51
`
`
`
`Accordingly, Sony is blatantly, willfully, in conscious disregard of the rights of the Plain-
`
`tiff, converting the PRT property and gross receipts from all sources related thereto.
`
`50.
`
` The Sony officers and the Sony Defendants were entirely certain of the terms of the PRT
`
`deal since Defendant Swidler was the attorney on point at Arista when Arista acquired
`
`Profile, Defendant Swidler was also Arista’s attorney on point when Arista was acquired
`
`by BMG, Defendant Swidler was also the attorney on point when BMG was absorbed by
`
`Sony and has been the attorney on point, upon information and belief, with Sony since PRT
`
`and plaintiff have been making their claims regarding their property rights.
`
`
`
`
`
`SONY OFFICER “PARTICIPATION” IN SONY’S BAD ACTS
`
`51.
`
` Sony’s officers, the Defendants Swidler and Leak, actively, willfully and intentionally
`
`participated in depriving plaintiff of his property. Swidler and Leak intentionally and
`
`knowingly contributed to the Sony Defendants’ mission and business plan to wrongfully
`
`extract monies from non-resourced and powerless artists of color by intentionally ignoring
`
`the artists’ legal rights to their intellectual property. The Defendants Swidler and Leak,
`
`however, had no personal economic motive and acted with disinterested malevolence
`
`against plaintiff and his interests solely because of their desire please their employer in
`
`another contract dispute with attorney Glickman. In fact, Swidler and Leak earned and do
`
`earn fat salaries, bonuses, and other forms of remuneration whether they swindle artists or
`
`not.
`
`52.
`
`The following links represent a partial list of leading retailers and streaming sites where
`
`Sony is selling and otherwise exploiting PRT’s music without authority as evidenced by
`
`the URLs set forth below:
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 13 of 51
`
`
`
`ꞏ https://open.spotify.com/album/79kOIV8l2lC7oZtRrvjNPm
`ꞏ https://www.amazon.com/Holy-Intellect-Expanded-Righteous-Teach-
`ers/dp/B01946BURW/ref=tmm_msc_swatch_0?_encoding=UTF8&qid=&sr=
`ꞏ https://www.amazon.com/Pure-Poverty-Poor-Righteous-Teach-
`ers/dp/B000000CGA/ref=ntt_mus_ep_dpi_2
`ꞏ https://www.amazon.com/Black-Business-Poor-Righteous-Teach-
`ers/dp/B000000CHQ/ref=ntt_mus_ep_dpi_3
`ꞏ https://www.amazon.com/World-Order-Poor-Righteous-Teach-
`ers/dp/B000000CJL/ref=ntt_mus_ep_dpi_4
`ꞏ https://open.spotify.com/album/0wUWUwLx6JNdhJi9EKPlhP
`ꞏ https://music.apple.com/us/album/black-business/1065978427
`ꞏ https://www.youtube.com/watch?v=gfMURCgM3GY
`ꞏ https://www.youtube.com/watch?v=gfMUR-
`CgM3GY&list=PLkeDHqZ2DvxwRBf0nH36VfsRdLQ1MyCv_&index=1
`ꞏ https://www.discogs.com/Poor-Righteous-Teachers-Holy-Intellect/master/124672
`ꞏ https://open.spotify.com/album/4tw8kzSXjdtfORVLu6nzqv
`ꞏ https://www.discogs.com/artist/45047-Poor-Righteous-Teachers
`ꞏ https://www.deezer.com/en/artist/490813
`ꞏ https://rateyourmusic.com/release/album/poor-righteous-teachers/holy-intellect/buy/
`ꞏ https://www.amazon.com/Essential-Poor-Righteous-Teachers-Explicit/dp/B011AXU6OU
`ꞏ https://store.tidal.com/us/album/55017656
`
`
`
`
`PUNITIVE DAMAGES REQUESTED BY VERDICT
`
`
`
`
`
`53.
`
`As set forth herein, as will be evidenced by the facts adduced in discovery, the Defendants’
`
`conduct in depriving plaintiff of money he was contractually owed was deliberate and in-
`
`tentional misconduct, whether by breach of common or statutory law, or caused by inten-
`
`tional torts, and is/was so egregious, willful and wanton as to shock the conscious of a
`
`reasonable trier of fact.
`
`54.
`
` Defendants Swidler’s and Leak’s deceit and evasion of the customary and decent inter-
`
`course regarding plaintiff’s presentation of his claims, is also intentional, willful and wan-
`
`ton and is/was so egregious, willful and wanton as to shock the conscious of a reasonable
`
`trier of fact.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 14 of 51
`
`
`
`55.
`
`Defendants, all of them, have been recklessly indifferent to plaintiff, and their conduct has
`
`been unjustified, continuing to cause plaintiff financial hardship, extreme anxiety and dis-
`
`comfort.
`
`56.
`
`Believing that they will not be held personally culpable for their misconduct in furtherance
`
`of their employer’s mission and business model, Defendants Swidler and Leak act in their
`
`dealings with artists, which Sony and the individual Defendants deem have less than
`
`marque value, in a manner employing tactics of inaccessibility; inattentiveness; ostracism;
`
`commercial bullying; deceit, antipathy and, false modesty.
`
`57.
`
`Particularly shocking is the Sony and individual Defendants’ noxious and deleterious “be-
`
`hind closed doors” business model, mission and policy of using defensive strategies of
`
`partition and attrition, with the intent of ultimately outlasting or diluting both the artists’
`
`claims, and, at times, careers and lives, and tragically, far too often the lifespan of the
`
`artists themselves, all the while these Defendants are lauded for their supposed compas-
`
`sionate treatment of the creative community.
`
`58.
`
`The Defendants’ misconduct as pled herein, warrants the imposition of punitive damages
`
`and sanctions in an amount that will punish and deter Defendants and other commercial
`
`actors like them in the entertainment industry.
`
`
`COUNT I
`
`CONVERSION/THEFT
`(Against All Defendants)
`
` Plaintiff repeats and re-alleges each and every allegation contained in the preceding para-
`
`graphs of the Complaint above as if fully set forth here at length.
`
`
`59.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 15 of 51
`
`
`
`60.
`
` Plaintiff has been assigned all property interests in the PRT recordings and publishing
`
`which has been and is continuing to be converted to Sony on a daily basis.
`
`61.
`
`Once Sony received PRT’s termination notice and Defendant Leak spoke to Glickman ac-
`
`knowledging Sony’s failure to cure its breaches, any further exploitation of PRT’s music
`
`was done knowingly and with knowledge that Sony no longer had any legal right to do so.
`
`62.
`
`Under the Profile Agreement, PRT was entitled to receive record and publishing royalties
`
`which were not ever received.
`
`
`
`63.
`
`Defendants control the collection and distribution of all gross royalties and fees from all
`
`sources from exploitation of PRT’s recordings and publishing and have to date failed to
`
`deliver to Plaintiff any information or royalties and/or other fees earned.
`
`64.
`
`Defendants have without license, right or authorization, exercised dominion and/or control
`
`over Plaintiff’s property and have interfered, and continue to interfere, with and are in de-
`
`fiance of Plaintiff’s superior legal rights in the intellectual property and creative works.
`
`65.
`
`Defendants’ have also fail and/or refused to deliver to Plaintiff his share of the royalties
`
`and/or other fees which Defendants have derived from exploitation of Plaintiff’s property
`
`and works and such taking of Plaintiff’s rightful share of royalties and/or other fees also
`
`constitutes conversion.
`
`66.
`
`Since the Profile Agreement was properly terminated, Defendants have no legal license,
`
`justification or privilege whatsoever to exploit the PRT recordings and published works in
`
`any manner without Plaintiff’s permission.
`
`67.
`
`Defendants’ misappropriation of Plaintiff’s property interests is not legally justifiable or
`
`legally privileged.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 16 of 51
`
`
`
`68.
`
`Ultimately, based upon ample and detailed notice to the Sony Defendants and Sony’s of-
`
`ficers as set forth herein, the Sony Defendants acquired a fiduciary duty as a matter of
`
`common law to protect the plaintiff’s property ad monies.
`
`69.
`
`Defendants’ failure to segregate the royalties and/or other fees from Sony’s other income
`
`constitutes co-mingling by the fiduciary Sony (see below).
`
`70.
`
`Defendants have converted both the legal title to Plaintiff’s intellectual property as well as
`
`all income derived from that property without license, justification and/or privilege.
`
`71.
`
`The acts of conversion of Plaintiff’s property and monies are so willful, wanton and egre-
`
`gious that they shock the conscious of a reasonable juror and punitive damages are war-
`
`ranted.
`
`72.
`
`Plaintiff has been damaged as result of Defendants’ tortious misconduct.
`
`
`
`73.
`
`COUNT II
`
`COPYRIGHT INFRINGEMENT
`(Against all Defendants)
`
`Plaintiff repeats and re-alleges each and every allegation contained in the preceding para-
`
`graphs of the Complaint above as if fully set forth here at length.
`
`74.
`
`Plaintiff is and at all material times hereto has been, the registered owner of the copyrights
`
`in and to the lyrics of all PRT’s songs.
`
`75.
`
`As set forth above, Defendants have made, copied, reproduced, displayed, licensed, ex-
`
`ploited, remixed, sampled and otherwise distributed or exploited Plaintiff’s copyrights (as
`
`herein defined), without limitation since Sony acquired Arista Records.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 17 of 51
`
`
`
`76.
`
`Since the Profile Agreement was properly terminated, Defendants have no authority to and
`
`Plaintiff did not authorize Defendants to copy, reproduce, distribute, perform, license, sam-
`
`ple, use or otherwise exploit Plaintiff’s copyrights.
`
`77.
`
`Defendants do not have any permission, consent or license from Plaintiff for the use, dis-
`
`tribution, copying, sampling, reproduction, performance, and exploitation of Plaintiff’s
`
`copyrights.
`
`78.
`
` Defendants’ infringing acts alleged herein were willful, deliberate, and committed with
`
`prior notice and knowledge of Plaintiff’s copyright interest in the PRT recordings and pub-
`
`lishing.
`
`79.
`
` Upon information and belief, Plaintiff has been harmed by the continued infringement by
`
`Defendants of Plaintiff’s copyrights in recordings and publishing.
`
`80.
`
`Upon information and belief, Defendants have infringed upon Plaintiff’s copyright beyond
`
`the mere unauthorized sale of its recordings, in the form of granting “remixes” and posting
`
`“remix videos”, as well either granting synchronization licenses or otherwise allowing
`
`“Rock Dis Funky Joint” to be incorporated into the popular documentary, "Wu Tang Clan:
`
`An American Saga”, in the beginning of episode 6.
`
`81. Wu Tang Clan: An American Saga is presently airing on Hulu.
`
`82.
`
`Upon information and belief, Defendants are likely to continue infringing Plaintiff’s cop-
`
`yrights in and to the PRT recordings and publishing unless they are enjoined from further
`
`infringement.
`
`83.
`
`Upon information and belief, the infringing acts of Defendants have been, are and if con-
`
`tinued hereafter will continue to be, committed willfully.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 18 of 51
`
`
`
`84.
`
`As a result of their actions, Defendants are liable to the Plaintiff for willful copyright in-
`
`fringement under 17 U.S.C. § 501.
`
`85.
`
`Plaintiff suffered, and will continue to suffer, losses in an amount not yet ascertained but
`
`to be determined at trial.
`
`86.
`
`In addition to Plaintiff’s actual damages, Plaintiff is entitled to receive the profits made by
`
`Defendants from their wrongful acts, pursuant to 17 U.S.C. § 504.
`
`87.
`
`In the alternative, Plaintiff is entitled to statutory damages, pursuant to 17 U.S.C. § 504(c),
`
`which should be enhanced by 17 U.S.C. § 504(c)(2) because of Defendants’ willful
`
`copyright infringement.
`
`88.
`
` Plaintiff is also entitled to recover its attorney’s fees and litigation costs pursuant to 17
`
`U.S.C. § 505.
`
`
`
`COUNT III
`
`CONTRIBUTORY COPYRIGHT INFRINGEMENT
`(Against All Defendants)
`
`Plaintiff repeats and re-alleges each and every allegation contained in the preceding
`
`89.
`
`paragraphs of the Complaint above as if fully set forth here at length.
`
`90.
`
`Plaintiff is, and at all material times hereto has been, the registered owner of the copyright
`
`in and to “Rock Dis Funky Joint” as well as all of the PRT lyrics.
`
`91.
`
`As set forth above, Defendants reproduced, distributed, licensed and otherwise illegally
`
`exploited the PRT recordings and compositions in various configurations and in
`
`commercial partnership with and through third parties, including but not limited to iTunes,
`
`YouTube, Apple, Amazon, Hulu, Universal, Spotify and many other sources and outlets
`
`including but not limited to leading music retailers and content streaming sites.
`
`
`
`

`

`Case 1:19-cv-10644 Document 1 Filed 11/16/19 Page 19 of 51
`
`
`
`92.
`
`As set forth above, users of third-party websites, including YouTube and Spotify, have
`
`engaged in the reproduction and distribution of the infringing PRT recordings and
`
`compositions as well as engaged in the creation of derivative works. Additionally, licensees
`
`of Defendants have reproduced and distributed the infringing songs.
`
`93.
`
`As a result, such users and licensees are liable for direct copyright infringement of
`
`Plaintiff’s exclusive right of reproduction and distribution under 17 U.S.C. §106.
`
`94.
`
`Defendants had actual and constructive knowledge of the infringing activity of third-party
`
`website users and unauthorized licensees and directly and materially contributed to that
`
`activity by directly participating in the licensing and distributing of the infringing material
`
`to those parties.
`
`95.
`
` Defendants provided access to the infringing material to third party websites and
`
`licensees, thus encouraging its use and contributing to infringing conduct for their own
`
`gain and should therefore be personally liable for damages awarded hereunder.
`
`96.
`
`As a result of the foregoing all Defendants shall be held liable under the Copyright Act for
`
`contributorily infringing Plaintiff’s copyrights, in violation of Sections 106 and 501 of the
`
`Copyright Act.
`
`97.
`
`As a direct and proximate result of Defendant’s infringement of Plaintiff’s copyrights,
`
`Plaintiff is entitled to maximum statutory damages, in the amount of $150,000 per work
`
`infringed, pursuant to 17 U.S.C. §504(c), or for such other amount as may be proper
`
`pursuant to 17 U.S.C. §504(c).
`
`98.
`
`Unless and until Defendant’s conduct is enjoined by this Court, Defendant’s will continue
`
`to cau