Beruflich Dokumente
Kultur Dokumente
COMPLAINT
2 through its attorneys Freund & Brackey LLP, hereby complains and alleges as
3 follows:
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5
This is a civil action arising under the United States Copyright Act. This
6 Court has federal question jurisdiction over this action pursuant to 15 U.S.C. 1121,
7 17 U.S.C. 501, 28 U.S.C. 1331 and 28 U.S.C. 1338(a) as well as pendant
8 jurisdiction over all state claims.
9
2.
10 with the principles of due process as enumerated in the California and U.S.
11 Constitutions, as Defendants have minimum contacts with California such that
12 maintenance of this suit does not offend traditional notions of fair play and
13 substantial justice. Upon information and belief: (1) Defendants operate at least one
14 business through which they have specifically targeted Californians; (2) Defendants
15 have intentionally infringed CEMHs registered copyrights, which acts are expressly
16 aimed at CEMHs business activities in California, and have harmed CEMH, the
17 brunt of which it has suffered, and which Defendants know is likely to be suffered,
18 in California; and (3) CEMHs claims arise out of or result from the Defendants
19 activities in California.
20
3.
21 28 U.S.C. 1400(a).
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23
INTRODUCTION
4.
COMPLAINT
THE PARTIES
5.
18 Kingdom company with its principal place of business in London, England. CEMH
19 provides financing to motion picture productions and acquires interests in film score
20 compositions and sound recordings. It creates significant value for its investors by
21 exploiting its catalogue of film score rights across a variety of platforms. CEMH is
22 the exclusive licensee and administrator of the original composition and sound
23 recording in and to the score of the motion picture entitled The Machine (the
24 Score), originally composed by Tom Raybould, which includes the Track. CEMH
25 also holds, via written instrument, the right to prosecute claims relating to the Score.
26
6.
COMPLAINT
7.
8.
9.
19 successful rapper who has written numerous successful songs for other artists and
20 frequently collaborates with THE WEEKND. Upon information and belief, BELLY
21 helped to compose, claims ownership in, and shares in the revenue stream from the
22 Infringing Song and the Infringing Album.
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24 organized and existing under the laws of the State of California. CEMH is informed
25 and believes that UMG is manufacturing and distributing the Infringing Song and
26 the Infringing Album and participating in the revenue stream of the Infringing Song
27 and the Infringing Album. Additionally, CEMH is informed and believe that UMG
28
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
COMPLAINT
1 claims an ownership interest in the sound recording of the Infringing Song and the
2 Infringing Album.
3
4 (REPUBLIC) is a corporation organized and existing under the laws of the State
5 of New York, which upon information and belief, regularly conducts business in
6 Los Angeles County, California. CEMH is informed and believes that REPUBLIC
7 is the record label responsible for production, manufacture, distribution, marketing,
8 and promotion of the Infringing Song and the Infringing Album, as well as
9 participating in the revenue stream therefrom. Additionally, CEMH is informed and
10 believes that REPUBLIC claims an ownership interest in the sound recording of the
11 Infringing Song and the Infringing Album.
12
22 limited liability company organized and existing under the laws of the State of
23 Delaware, which is registered as a foreign entity in California and upon information
24 and belief, regularly conducts business in Los Angeles County. SONY/ATV is a
25 music publishing company, which CEMH is informed and believes, is responsible
26 for exploiting the composition of the Infringing Song and the Infringing Album.
27 Upon information and belief, SONY/ATV claims an ownership interest in the
28
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
COMPLAINT
1 Infringing Song and also participates in the revenue stream from the Infringing Song
2 and the Infringing Album.
3
4 liability company organized and existing under the laws of the State of New York,
5 which is registered as a foreign entity in California and upon information and belief,
6 regularly conducts business in Los Angeles County. SMP is a music publishing
7 company, which CEMH is informed and believes, is responsible for exploiting the
8 composition of the Infringing Song and the Infringing Album. Upon information
9 and belief, SMP claims an ownership interest in the Infringing Song and also
10 participates in the revenue stream from the Infringing Song and the Infringing
11 Album.
12
13 (WBMC) is a corporation organized and existing under the laws of the State of
14 California, and has its principal office in Los Angeles County. WBMC is a music
15 publishing company, which CEMH is informed and believes, is responsible for
16 exploiting the composition of the Infringing Song and the Infringing Album. Upon
17 information and belief, WBMC claims an ownership interest in the Infringing Song
18 and also participates in the revenue stream from the Infringing Song and the
19 Infringing Album.
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21 unknown designation that CEMH is informed and believes conducts business in Los
22 Angeles County. COC is a music publishing company, which CEMH is informed
23 and believes, is responsible for exploiting the composition of the Infringing Song
24 and the Infringing Album. Upon information and belief, COC claims an ownership
25 interest in the Infringing Song and also participates in the revenue stream from the
26 Infringing Song and the Infringing Album.
27
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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
COMPLAINT
2 designation that CEMH is informed and believes conducts business in Los Angeles
3 County. CPMG is a music publishing company, which CEMH is informed and
4 believes, is responsible for exploiting the composition of the Infringing Song and
5 the Infringing Album. Upon information and belief, CPMG claims an ownership
6 interest in the Infringing Song and also participates in the revenue stream from the
7 Infringing Song and the Infringing Album.
8
9 that CEMH is informed and believes conducts business in Los Angeles County.
10 SOS is a music publishing company, which CEMH is informed and believes, is
11 responsible for exploiting the composition of the Infringing Song and the Infringing
12 Album. Upon information and belief, SOS claims an ownership interest in the
13 Infringing Song and also participates in the revenue stream from the Infringing Song
14 and the Infringing Album.
15
16 unknown designation that CEMH is informed and believes conducts business in Los
17 Angeles County. SOTHA is a music publishing company, which CEMH is
18 informed and believes, is responsible for exploiting the composition of the
19 Infringing Song and the Infringing Album. Upon information and belief, SOTHA
20 claims an ownership interest in the Infringing Song and also participates in the
21 revenue stream from the Infringing Song and the Infringing Album.
22
23 designation that CEMH is informed and believes conducts business in Los Angeles
24 County. SAB is a music publishing company, which CEMH is informed and
25 believes, is responsible for exploiting the composition of the Infringing Song and
26 the Infringing Album. Upon information and belief, SAB claims an ownership
27
28
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
COMPLAINT
1 interest in the Infringing Song and also participates in the revenue stream from the
2 Infringing Song and the Infringing Album.
3
22. CEMH is unaware of the names and true capacities of Defendants named
23. CEMH is informed and believes, and based thereon allege, that
16 Defendants and DOES 1 through 10, inclusive, are each in some manner responsible
17 for the wrongs alleged herein, and that at all times referenced each was the agent
18 and servant of the other Defendants, each of whom obtained financial benefit from
19 the Defendants acts and omissions, and each of whom was acting within the course
20 and scope of said agency and employment.
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24. CEMH is informed and believe, and based thereon allege, that at all
22 relevant times herein, Defendants, and DOES 1 through 10 inclusive, did aid, abet,
23 participate in, contribute to, or benefit from the acts and behavior alleged herein and
24 the damages caused thereby, and by their inaction ratified and encouraged such acts
25 and behavior.
26
25. CEMH further alleges that Defendants and DOES 1 through 10, inclusive,
27 had a non-delegable duty to prevent or cure such acts and the behavior described
28
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
COMPLAINT
1 herein, which duty Defendants and DOES 1 through 10, inclusive, failed and/or
2 refused to perform.
3
FACTUAL BACKGROUND
26. Cutting Edge Music Services Limited, a motion picture music services
27. In the written agreement commissioning creation of the Score for The
11 Machine, Raybould covenanted to enter into an agreement with 3AM Music Limited
12 (3AM), under which he would assign the copyright and all other rights in and to
13 the entire Score, including the Track, to 3AM.
14
28. On June 11, 2013, Raybould and 3AM entered into a written agreement,
29. The first public screening of The Machine occurred on April 20, 2013, at
20 the Tribeca Film Festival, and constituted the initial public performance of the Score
21 and its constituent Track.
22
30. The soundtrack album of the Score, containing the Track, was released to
31. The Machine was released theatrically in the United States on April 25,
25 2014.
26
32. Raybould received the prestigious 2013 Best Original Music BAFTA
COMPLAINT
2 3AM, 3AM granted to CEMH an exclusive license to administer, control, use, and
3 exploit, and otherwise deal in all right title and interest, including the worldwide
4 copyright, in the composition and sound recording of the Score. This license grant
5 specifically included the sole and exclusive right to prosecute, defend and/or settle
6 any third party action or claim relating to the Score.
7
34. Pandora Films Ltd., producer of The Machine, registered The Machine
8 with the United States Copyright Office as a Motion Picture work. The film
9 received Registration Number PA0001875037.
10
35. 3AM submitted its own separate application to register the composition of
11 the Score, and specifically including the Track as a title included in the application,
12 as a work of Performing Arts. 3AM deposited via electronic upload a copy of the
13 Score with the United States Copyright Office and paid the registration service fee.
14 The registration case is currently pending with the United States Copyright Office.
15
16 direct message stating I sampled your music might make it 2 the weeknd next
17 album. Huge fan of what u did 4 the machine movie!
18
37. On or about May 27, 2015, Defendant THE WEEKND, through his labels
19 XO and REPUBLIC, released the Infringing Song, as the second single from The
20 WEEKNDs then-forthcoming second studio album entitled Beauty Behind the
21 Madness, the Infringing Album. The Infringing Album was subsequently released
22 on August 28, 2015, by Defendants XO and REPUBLIC, and featured the Infringing
23 Song as its fifth track.
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10
COMPLAINT
1 beginning 2 minutes and 26 seconds into the Track Revolution a/k/a Revolution
2 Sequence appears throughout the Infringing Song).
3
39. Specifically, both the Infringing Song and the Track featuring synthesizer
4 bass-lines performed with almost identical idiosyncratic sounds at the same register
5 and using the same pitch sequence, melodic phase structure and rhythmic durations.
6 The Infringing Song and the Track also share other distinct melodic, rhythmic and
7 formatted similarities. The essential elements from the Track recur throughout the
8 Infringing Song, forming a type of bed within the Infringing Song. Furthermore, a
9 distinctive decorative note omission occurs at the same place within the musical part
10 in both the Track and the Infringing Song.
11
40. These strong musicological similarities between the Infringing Song and
12 the Track reinforce the conclusion that the Infringing Song represents a copying of
13 the Track.
14
41. Upon information and belief, the Infringing Song was jointly produced by
42. Upon information and belief, the Infringing Song was jointly written by
43. Upon information and belief, the Infringing Song was recorded and
22 performed by THE WEEKND. The Infringing Album credits THE WEEKND with
23 performing the Infringing Song.
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44. Upon information and belief, Defendants XO, REPUBLIC, and UMG are
25 the labels and distributors who were and are involved with the creation,
26 manufacture, release, marketing, distribution, public performance and other
27 exploitation of the Infringing Song and the Infringing Album.
28
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
11
COMPLAINT
2 SONY/ATV, SMP, WBMC, COC, CPMG, SOS, SOHTA and SAB are the music
3 publishers who were and are involved with the release, reproduction, distribution,
4 administration, public performance and other exploitation of the Infringing Song
5 and the Infringing Album.
6
46. The Infringing Song and the Infringing Album were released, distributed
7 and marketed throughout the United States, including California, and throughout the
8 rest of the World.
9
47. The single release of the Infringing Song debuted on the Billboard Hot 100
10 at number 20 for the chart dated June 13, 2015, and received first-week digital
11 download sales of 109,000 copies and 5.2 million domestic streams. The Infringing
12 Album debuted at number one on the Billboard 200, with sales of approximately
13 326,000 copies in its first week. As of October 19, 2015 music industry publication
14 Billboard reported The Weeknds The Hills tops the Billboard Hot 100 for a fifth
15 week The Hills leads Radio Songs for a fourth week (150 million in audience,
16 up 1 percent) and rebounds 2-1 for a third frame atop Streaming Songs (20 million
17 U.S. Streams, up 14 percent). Hills also notches a fifth week at No. 1 on
18 Billboards Hot R & B/Hip-Hop Songs chart. Upon information and belief, both
19 the single version of the Infringing Song and the Infringing Album have become
20 huge commercial successes and have generated millions of sales and streams, and
21 continue to be sold and streamed worldwide.
22
48. The Infringing Song obtained even greater publicity and dissemination via
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COMPLAINT
49. On December 7, 2015 the Infringing Album was nominated for seven
51. CEMH realleges and incorporates by reference each and every allegation
52. CEMH is the exclusive licensee of the U.S. copyright in all right, title and
10 interest in the musical composition of the Score, including the Track, written by
11 Raybould, and the sole party empowered to prosecute actions and claims relating to
12 the Score. The musical composition is properly registered with the United States
13 Copyright Office.
14
54. CEMH did not and does not authorize any of the Defendants, or any of
13
COMPLAINT
56. Since Defendants acts have also caused CEMH irreparable, ongoing
[Unjust Enrichment]
57. CEMH realleges and incorporate by reference each and every allegation
58. By reason of the foregoing facts, Defendants, and each of them, have
12 become unjustly enriched at the expense of CEMH by failing to license from CEMH
13 the right to use the Track and by realizing monetary gain from their unauthorized
14 use of CEMHs Track.
15
59. Defendants, and each of them, have been unjustly enriched in an amount
16 which cannot be precisely ascertained at this time, but will be ascertained according
17 to proof at trial.
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61.
24 generated from the distribution and exploitation of the Infringing Song as a single
25 and the Infringing Album in that they are the exclusive copyright licensees of the
26 Track.
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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
14
COMPLAINT
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[Constructive Trust]
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27 from the nonconsensual exploitation of their Track in that they are entitled to
28
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
15
COMPLAINT
1 receive all profits and a licensing fee. CEMH has not given their consent for
2 Defendants to utilize their original musical composition of the Track to create the
3 Infringing Song; therefore, CEMH has not been paid any licensing fee conferring
4 such privilege on Defendants.
5
68.
6 and exploit the Infringing Song, Defendants have violated CEMHs rights and have
7 been unjustly enriched in an amount to be determined at trial.
8
[Permanent Injunction]
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11
69.
70.
14 and each of them, have promoted, advertised, administered, performed, sold and
15 otherwise exploited the Infringing Song and the Infringing Album, or caused the
16 Infringing Song and the Infringing Album to be promoted, advertised, administered,
17 performed, sold and otherwise exploited, without CEMHs consent and without
18 payment.
19
71.
20 be enjoined in that they have caused, and continue to cause, CEMH great and
21 irreparable injury.
22
72.
CEHM has no other plain, speedy or adequate remedy at law, and the
23 injunctive relief prayed for below is necessary and appropriate at this time to
24 prevent irreparable loss to CEMHs interests.
25
16
COMPLAINT
1. That the Court adjudge and decree that the Defendants have willfully
5. That Defendants disgorge all profits derived from their wrongful conduct;
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8. That the Court grants such other, further, and different relief as the Court
3. Interest at the maximum legal rate from the date the Infringing Song was
released to the public.
17
COMPLAINT
3 channels any and all copies of the Infringing Song and the Infringing Album so as to
4 permanently remove them from the stream of commerce; and
5
6. That the Court grants such other, further, and different relief as the Court
9 relating to the Infringing Song and the Infringing Album in order to determine the
10 sums of money owed to CEMH;
11
3. Interest at the maximum legal rate from the date said sums were due;
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18 favor of CEMH with respect to all income received by them from exploitation of the
19 Infringing Song and the Infringing Album;
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3. Interest at the maximum legal rate from the date of public distribution of
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26 ///
27 ///
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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
18
COMPLAINT
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7 distribution channels any and all copies of the Infringing Song and the Infringing
8 Album so as to permanently remove then from the stream of commerce;
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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
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COMPLAINT
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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210
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COMPLAINT