doniger / burroughs · stephen m. doniger, esq. (sbn 179314) [email protected] scott alan...
TRANSCRIPT
-
1 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Stephen M. Doniger, Esq. (SBN 179314) [email protected] Scott Alan Burroughs, Esq. (SBN 235718) [email protected] David R. Shein, Esq. (SBN 230870) [email protected] DONIGER / BURROUGHS 603 Rose Avenue Venice, California 90291 Telephone: (310) 590-1820 Attorneys for Plaintiff JAIME CIERO
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
JAIME CIERO, an Individual, Plaintiff, v. THE WALT DISNEY COMPANY, a California Corporation; DISNEY ENTERPRISES, INC., a California Corporation; WALT DISNEY MOTION PICTURES GROUP, a California Corporation; WALT DISNEY PICTURES, a California Corporation; WONDERLAND MUSIC COMPANY, INC., a California Corporation; ABC, INC., a California Corporation d/b/a WALT DISNEY RECORDS; DISNEY INTERACTIVE, INC., a California Corporation; BUENA VISTA HOME ENTERTAINMENT, INC., a California Corporation; KRISTEN ANDERSON LOPEZ, an Individual; ROBERT LOPEZ, and Individual; IDINA MENZEL, an Individual; DEMI LOVATO, an Individual; and DOES 1 – 10, Defendants.
Case No.: 2:17-cv-08544 GW (MRWx) Hon. George H. Wu Presiding PLAINTIFF’S SECOND AMENDED COMPLAINT FOR:
(1) DIRECT COPYRIGHT INFRINGEMENT; AND (2) SECONDARY COPYRIGHT INFRINGEMENT JURY TRIAL DEMANDED
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 1 of 24 Page ID #:222
-
2 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff, Jaime Ciero, by and through his undersigned attorneys, hereby prays
to this honorable Court for relief based on the following:
INTRODUCTION
Jaime Ciero is a musician of international acclaim and regard. He has created
and contributed to numerous critically and commercially successful compositions and
songs. Ciero’s original work Volar was misappropriated by the Defendants, and each,
and unlawfully copied and reproduced to create the global hit “Let it Go,” which was
featured as the primary song in, and a narrative basis for, the feature film Frozen.
Ciero’s original work and “Let it Go” bear similarities so striking as to preclude the
possibility that the latter song was independently created. Before exploiting his work,
Defendants at no time contacted Ciero to obtain his consent in regard to their use of
his original material. This action seeks redress for Defendants’ violations of the
Copyright Act.
PARTIES
1. At all times mentioned herein, JAIME CIERO (“Ciero”) was an
individual residing in Los Angeles County, California.
2. Plaintiff is informed and believes and thereon alleges that defendant THE
WALT DISNEY COMPANY is a Delaware corporation with its principal place of
business at 500 South Buena Vista Street, Burbank, California, 91521, duly
authorized to do and doing business in this District. At all times material hereto, THE
WALT DISNEY COMPANY has been engaged in the business of, among other
things, developing, producing, and distributing animated feature films and the
soundtracks thereto. Plaintiff is informed and believes and thereon alleges that
defendant THE WALT DISNEY COMPANY produced and released the film entitled
Frozen and the soundtrack thereto, including “Let it Go” and is a developer and
producer of live performances of Frozen including without limitation “Disney
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 2 of 24 Page ID #:223
-
3 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Presents Frozen on Ice” and “Frozen: A Broadway Musical” and the soundtracks
thereto.
3. Plaintiff is informed and believes and thereon alleges that defendant
DISNEY ENTERPRISES, INC., is a Delaware corporation with its principal place of
business at 500 South Buena Vista Street, Burbank, California, 91521, duly
authorized to do and doing business in this District. At all material times, DISNEY
ENTERPRISES, INC., in concert with affiliated companies of THE WALT DISNEY
COMPANY and/or their predecessors in interest, produced, released and distributed
and continues to release, license and distribute, the film entitled Frozen and the
soundtracks thereto, including “Let it Go,” and is a developer and producer of live
performances of Frozen, including without limitation, “Disney Presents Frozen on
Ice” and “Frozen: A Broadway Musical” and the soundtracks thereto.
4. Plaintiff is informed and believes and thereon alleges that defendant
WALT DISNEY MOTION PICTURES GROUP, INC., is a California corporation
with its principal place of business at 500 South Buena Vista Street, Burbank,
California, 91521, duly authorized to do and doing business in this District. At all
material times, WALT DISNEY MOTION PICTURES GROUP, INC., in concert
with affiliated companies of THE WALT DISNEY COMPANY and/or their
predecessors in interest, developed, produced, released and distributed and continues
to release, license and distribute the film entitled Frozen and the soundtracks thereto,
including “Let it Go,” and is a developer and producer of live performances of
Frozen including without limitation “Disney Presents Frozen on Ice” and “Frozen: A
Broadway Musical” and the soundtracks thereto.
5. Plaintiff is informed and believes and thereon alleges that defendant
WALT DISNEY PICTURES is a California corporation with its principal place of
business at 500 South Buena Vista Street, Burbank, California, 91521, duly
authorized to do and doing business in this District. At all material times, WALT
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 3 of 24 Page ID #:224
-
4 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DISNEY PICTURES, in concert with affiliated companies of THE WALT DISNEY
COMPANY and/or their predecessors in interest, developed, produced, released and
distributed and continues to release, license and distribute the film entitled Frozen
and the soundtracks thereto, including “Let it Go” and is a developer and producer of
live performances of Frozen including without limitation “Disney Presents Frozen on
Ice” and “Frozen: A Broadway Musical” and the soundtracks thereto.
6. Plaintiff is informed and believes and thereon alleges that defendant
ABC, INC. is a California corporation with its principal place of business at 500
South Buena Vista Street, Burbank, California, 91521, duly authorized to do and
doing business in this District and is doing business as WALT DISNEY RECORDS
(hereinafter “WALT DISNEY RECORDS”). At all material times, WALT DISNEY
RECORDS, in concert with affiliated companies of THE WALT DISNEY
COMPANY and/or their predecessors in interest, developed, produced, released,
licensed and distributed and continues to distribute and license the soundtrack to the
film Frozen and “Frozen: A Broadway Musical,” including “Let it Go.”
7. Plaintiff is informed and believes and thereon alleges that defendant
BUENA VISTA HOME ENTERTAINMENT, INC. is a California corporation with
its principal place of business at 500 South Buena Vista Street, Burbank, California,
91521, duly authorized to do and doing business in this District. At all material times,
BUENA VISTA HOME ENTERTAINMENT, INC., in concert with affiliated
companies of THE WALT DISNEY COMPANY and/or their predecessors in
interest, developed, released and distributed, and continues to release and distribute
the film Frozen.
8. Plaintiff is informed and believes and thereon alleges that defendant
DISNEY INTERACTIVE, INC. is a California corporation with its principal place of
business at 500 South Buena Vista Street, Burbank, California, 91521, duly
authorized to do and doing business in this District. At all material times, DISNEY
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 4 of 24 Page ID #:225
-
5 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERACTIVE, INC., in concert with affiliated companies of THE WALT DISNEY
COMPANY and/or their predecessors in interest, owns and operates Disney websites,
and at all material times has been and is marketing, displaying and distributing the
film entitled Frozen and the soundtrack thereto, including “Let it Go,” as well as
other audiovisual clips incorporating “Let it Go” and the soundtrack to Frozen: A
Broadway Musical.
9. Plaintiff is informed and believes and thereon alleges that defendant
WONDERLAND MUSIC COMPANY, INC. is a California corporation with its
principal place of business at 500 South Buena Vista Street, Burbank, California,
91521, duly authorized to do and doing business in this District. At all material times,
WONDERLAND MUSIC COMPANY, INC. in concert with affiliated companies of
THE WALT DISNEY COMPANY and/or their predecessors in interest, has been and
is marketing, distributing and licensing “Let it Go”.
10. THE WALT DISNEY COMPANY, DISNEY ENTERPRISES, INC.,
WALT DISNEY MOTION PICTURES GROUP, INC., WALT DISNEY
PICTURES, WALT DISNEY RECORDS, BUENA VISTA HOME
ENTERTAINMENT, INC., DISNEY INTERACTIVE, INC., AND
WONDERLAND MUSIC COMPANY, INC., may at times herein be referred to
collectively as “Disney” or “Disney Defendants.”
11. Plaintiff is informed and believes that KRISTEN ANDERSON LOPEZ
(“K. Lopez”) is an individual doing business in and with the residents of California.
12. Plaintiff is informed and believes that ROBERT LOPEZ (“R. Lopez”) is
an individual doing business in and with the residents of California.
13. Plaintiff is informed and believes that IDINA MENZEL (“Menzel”) is an
individual doing business in and with the residents of California.
14. Plaintiff is informed and believes that DEMI LOVATO (“Lovato”) is an
individual doing business in and with the residents of California.
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 5 of 24 Page ID #:226
-
6 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15. Plaintiff is informed and believe and thereon alleges that Defendants are
agents and alter egos of one another and share common interests and unity of
interests, as well as shared and ownership between the Defendant entities to the
extent that it would inequitable if the acts in question are treated as those of the
entities alone. Plaintiff is informed and believes and thereon alleges that at all times
relevant hereto each of the Defendants was the agent, affiliate, officer, director,
manager, principal, alter-ego, and/or employee of the remaining Defendants and was
at all times acting within the scope of such agency, affiliation, alter-ego relationship
and/or employment; and actively participated in or subsequently ratified and/or
adopted each of the acts or conduct alleged, with full knowledge of all the facts and
circumstances, including, but not limited to, full knowledge of each violation of
Plaintiff’s rights and the damages to Plaintiff proximately caused thereby.
16. Plaintiff is unaware of the true names and capacities of the defendants
sued herein as DOES 1 through 10, inclusive, and for that reason, sue defendant(s)
under such fictitious names. Plaintiff is informed and believe and based thereon
allege that such fictitiously named defendants are responsible in some manner for the
occurrences alleged herein, and that Plaintiff’s damages as herein alleged were
proximately caused by the conduct of said defendants. Plaintiff will seek to amend
the complaint when the names and capacities of such fictitiously named defendants
are ascertained. As alleged herein, the term “Plaintiff” shall mean the named plaintiff,
and “Defendants” shall mean all named defendants and all fictitiously named
defendants.
JURISDICTION AND VENUE 17. This Court has personal jurisdiction over each and every one of the
Defendants. Venue in this Court is proper under 28 U.S.C. § 1391(c) and 1400(a)
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 6 of 24 Page ID #:227
-
7 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
because one or more Defendants reside and/or carry on business here, and the
wrongful acts of Defendants took place, in whole or in part, in this District.
18. This action arises under the Copyright Act of 1976, Title 17 U.S.C., §
101 et seq.
19. This Court has federal question jurisdiction under 28 U.S.C. § 1331 and
1338 (a) and (b).
GENERAL FACTUAL ALLEGATIONS
20. Plaintiff created and owns exclusive and/or beneficial copyrights and
other rights in a musical composition entitled Volar. Plaintiff also created and owns
exclusive and/or beneficial copyrights and other rights in the sound recording of the
song entitled Volar.
21. The musical composition and sound recording of Volar have been
submitted to the United States Copyright Office for registration, in compliance with
all necessary deposit, payment, and other formalities. In the alternative, to the extent
that Volar was first published abroad, it would be exempt from the registration
requirement per the relevant international treaties and accords.
22. Plaintiff created and owns exclusive and/or beneficial copyrights and
other rights in the musical composition and sound recording of a remix of Volar (the
“Remix”). The musical composition and sound recording of Remix have been
submitted to the United States Copyright Office for registration, in compliance with
all necessary deposit, payment, and other formalities. In the alternative, to the extent
that Remix was first published abroad, it would be exempt from the registration
requirement per the relevant international treaties and accords.
23. Defendants, and each of them, by way of the conduct set forth herein,
infringed Plaintiff’s rights in both the musical composition and sound of Volar and/or
the Remix. This infringement includes, without limitation, Defendants’, and each of
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 7 of 24 Page ID #:228
-
8 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
their, violation of Plaintiff’s exclusive rights, as set forth in 17 U.S. Code § 106, in
and to Volar and the Remix,
24. Volar was registered with ASCAP before the infringement at issue.
25. Volar was a huge international success, reaching millions of listeners and
landing on numerous charts of the most popular and top-performing songs. It has
been professionally recorded and widely and publicly performed in this District and
throughout the United States and the world by means of records, radio, streaming
channels, television, video, audio, and other media. Recordings of and other copies of
Volar have also been widely published, broadcast, and/or sold throughout the United
States, including in this District.
26. Defendants have had an ongoing and continuous opportunity to access to
Volar in various ways including aforementioned public performances, records,
streaming services, interaction with Plaintiff’s collaborators, and broadcasts prior to
the infringement alleged herein.
27. Defendants, and each of them, have continuously and repeatedly
infringed, and are presently infringing, Plaintiff’s copyrights in Volar by performing,
broadcasting, streaming, marketing, selling, licensing, and otherwise exploiting and
monetizing the song, and unauthorized derivative work, entitled “Let it Go”
(“Infringing Song”).
28. Defendants copied substantial qualitative and quantitative portions of the
sound recording and/or musical composition of Volar in creating the Infringing Song,
including constituent elements that are original. Volar and the Infringing Song
include note combinations and structures, hooks, melodies, lyrics, themes,
production, and textures that are at least substantially similar. Plaintiff hereby
incorporates by reference his sound recording and composition of Volar and the
Remix, and the sound recording of the Infringing Song. Similarities between Volar
and Infringing Song include but are not limited to the following:
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 8 of 24 Page ID #:229
-
9 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29. The choruses of both Volar and Infringing Song are set to a four-
measure repeated harmonic pattern of I-V-vi-IV.
30. The critical “hook” of both Volar and Infringing Song, sets each’s title
lyrics (“Volar” and “Let it go,” respectively) over the same melody. This melody is
characterized by two stark rising gestures: up to scale-step 4, and then from scale-step
1 to scale-step 5. In both Songs, the “hook” falls in the same harmonic position, the
beginning two measures of the four-measure harmonic pattern. The transcription
below, in which both songs are transposed to the key of C Major, shows that these
melodies are nearly identical1:
31. Both Volar and Infringing Song use the hook’s rising gestures to evoke a
sense of freedom and of moving from darkness into light. “Volar” means “to fly,” or
to rise. Indeed, the Catalan version of Infringing Song directly translates “let it go” to
“vol volar.”
32. A substantially similar melody also appears in the chorus of both Volar
and Infringing Song, over the final two measures of the four-measure harmonic
1 The central rising gesture is clear and conspicuous in both Volar and the Infringing
Song.
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 9 of 24 Page ID #:230
-
10 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
pattern. Both melodies start on scale-step 1, climb to scale-step 4, and descend back
to scale-step one. This similarity is illustrated below:
33. There are additional similar melodic elements throughout the chorus,
including strikingly similar vocal inflections and embellishments in later repetitions
of the “hook.”
34. In the second verses of both Volar and Infringing Song, immediately
following the first choruses, both Volar and Infringing Song introduce a new,
staccato (short-note) element, which serves to build momentum to the reprise of
each’s bridge and chorus.
35. In the final measure of its chorus, Volar features a rising vocal melody
set against a descending instrumental line. Volar uses this technique of two musical
elements moving in contrary motion to build momentum into and mark the beginning
of the verse. Infringing Song uses the same technique following its first chorus to
mark the beginning of a new section, and repeats this combination of ascending and
descending lines, in various forms and embellishments, throughout.
36. The Infringing Song is extrinsically and intrinsically similar to Volar.
37. On information and belief, Plaintiff alleges that R. Lopez and K. Lopez,
in concert with Disney, developed, and distributed the Infringing Song for the benefit
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 10 of 24 Page ID #:231
-
11 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of themselves, and others; and that Disney, Lovato, and Menzel recorded, distributed,
and publicly performed the Infringing Song.
38. On information and belief, Plaintiff alleges that Disney incorporated the
Infringing Song into live and filmed versions of Frozen and into Frozen merchandise,
and distributed, performed, monetized, and otherwise profited from Frozen, Frozen
merchandise, and the exploitation of the Infringing Song in connection with the
foregoing.
39. On information and belief, Plaintiff alleges that Lovato and Menzel have
performed and continue to perform the Infringing Song and reap the benefits of the
Infringing Song, including through the receipt and/or collection of royalties and
licensing fees therefrom.
40. The Infringing Song is the primary musical element of the feature film
Frozen. It is the theme song for the film and plays (on Broadway and on Ice) and the
lead single that was used in marketing and advertising, and throughout the film and
plays. The use of the Infringing Song in connection with Frozen added substantial
value to the film and other productions including “Disney Presents Frozen on Ice”
and “Frozen: A Broadway Musical” and resulted in and continues to result in
substantial added revenue to Defendants.
41. The soundtrack to Frozen, which includes multiple versions of the
Infringing Song, and the performance and display of Frozen itself, have further
enabled Defendants to profit from their unauthorized copy of Volar. The foregoing
material has been widely and successfully marketed, distributed, and monetized in
this District and elsewhere in the United States, and throughout the rest of the world
within the three years prior to the filing of Plaintiff’s initial complaint in this action
and beforehand. The Infringing Song and Frozen have been and continue to be
repeatedly played on theater screens, television, home video, broadcast, streaming
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 11 of 24 Page ID #:232
-
12 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
channels, online platforms, radio, and other outlets and media sources in this District
and elsewhere in the United States, and throughout the rest of the world.
42. A live version of Frozen, “Frozen: A Broadway Musical,” has been
performed on Broadway within the three years before the filing of Plaintiff’s initial
complaint in this action, further shows on Broadway are scheduled to take place
through at least March of 2019 and said shows are presently being marketed and
advertised. On information and belief, Plaintiff alleges that the Frozen musical is also
scheduled to be performed in numerous other theaters in the United States. On
information and belief, it is alleged that the Infringing Song is and will be a primary
and substantial element of said musical performances, and this infringement will
continue unless enjoined by this Court.
43. Plaintiff filed the initial complaint in this action on November 23, 2017.
Dkt. No. 1.
FIRST CLAIM FOR RELIEF
(For Direct Copyright Infringement – Against all Defendants, and Each of
Them)
44. Plaintiff repeats, re-alleges, and incorporates herein by reference as
though fully set forth, the allegations contained in the preceding paragraphs of this
Complaint.
45. Plaintiff is an owner and/or is the beneficial owner of the copyright and
other exclusive rights in Volar’s and the Remix’s composition and sound recording.
46. Defendants had a reasonable possibility to access Volar and/or the Remix
through radio play, broadcast, online streaming, online transmission, download,
Youtube, other video services, or other disseminations. Plaintiff is informed and
believes and thereon alleges that Defendants, and each of them, had access to Volar
and/or the Remix, including, without limitation, through (a) listening to the
recordings via Plaintiff’s or others’ public performances or recordings of Volar
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 12 of 24 Page ID #:233
-
13 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and/or the Remix, (b) streaming or downloading Volar and/or the Remix online, (c)
listening to the Volar and/or the Remix through a third-party, including parties with
whom Plaintiff has worked with and collaborated, (d) viewing the sheet music or
other written indicia reflecting Volar and/or the Remix. Plaintiff further alleges that
the Lopez Defendants collaborated, interacted, and worked with at least one musician
who also worked with Plaintiff, and would have a possibility to access the material at
issue through that musician.
47. The striking similarities between Volar and the Infringing Song also
establishes a possibility to access.
48. The Infringing Song is an unauthorized reproduction and copy the
musical composition and sound recording of Volar and/or the Remix, and/or is an
unlawful derivative thereof. Defendants’ distribution, public performance, display,
and creation of a derivative work of Volar and/or the Remix infringes Plaintiff’s
exclusive and/or beneficial rights in Volar and/or the Remix in violation of the
Copyright Act, 17 U.S.C. § 106 et seq. During the three years before the date of the
filing of the initial complaint in this action, and to date, the Disney defendants, and
each of them, have committed separate and successive violations of Plaintiff’s
copyright by, inter alia,(a) reproducing the Infringing Song in copies or
phonorecords, including, without limitation, in the soundtracks to the Frozen film and
the “Frozen: A Broadway Musical,” and in merchandise and toys, including dolls; (b)
distributing copies or phonorecords of the Infringing Song to the public by sale or
other transfer of ownership, or by rental, lease, or lending, including by, without
limitation, selling and distributing hard copies of the Infringing Song as a single and
as part of the soundtrack to Frozen and “Frozen: A Broadway Musical” to and
through Amazon.com, Walmart and Target; (c) licensing and distributing the film
Frozen through various online channels, including without limitation, Netflix,
Amazon Video, broadcast and cable television, and by DVD and BlueRay; and, (d)
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 13 of 24 Page ID #:234
-
14 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
performing the Infringing Song publicly, at “Disney Presents Frozen on Ice” and
“Frozen: A Broadway Musical,” and in television broadcasts and online streaming of
the movie Frozen.
49. Defendants did not seek or receive Plaintiff’s consent or authorization to
copy, appropriate, sample, cover, reproduce, or interpolate any portion of Volar
and/or the Remix. Yet, the Infringing Song incorporates and includes a substantial
and material portion of Volar and/or the Remix in its composition and performance.
50. Defendants’ conduct has at all times been, and continues to be, knowing,
willful, and with complete disregard to Plaintiff’s rights.
51. As a proximate cause of Defendants’ wrongful conduct, Plaintiff has
been irreparably harmed.
52. The Infringing Song copies quantitatively and qualitatively distinct,
important, and recognizable portions of Volar and/or the Remix, as discussed herein.
53. On information and belief, Plaintiff alleges that within the three years
before the date of the filing of the initial complaint in this action and to the present
date, the Disney Defendants, and each, have committed separate and successive
violations of Plaintiff’s copyright interest in the sound recording and musical
composition of Volar and/or the Remix , without limitation, as follows: (a)
authorizing the live performance of the Infringing Song in connection with “Frozen:
A Broadway Musical,” “Disney Presents Frozen on Ice,” ABC’s “The Wonderful
World of Disney: Disneyland 60,” which was recorded and broadcast on or about
February 10, 2016, and ABC’s “Rockin Eve” television production which was
recorded and broadcast by ABC on or about December 31, 2015; (b) performing the
Infringing Song publicly at live productions and other performances of Frozen,
including without limitation, “Frozen: A Broadway Musical” and “Disney Presents
Frozen on Ice” (c) publicly performing the Infringing Song in live performances,
including the live performance of ABC’s “The Wonderful World of Disney:
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 14 of 24 Page ID #:235
-
15 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Disneyland 60” which was recorded and broadcast on or about February 10, 2016,
and publicly performing the Infringing Song in the live performance of ABC’s
“Rockin Eve” television production which was recorded and broadcast by ABC on or
about December 31, 2015; (d) authorizing the reproduction, distribution and sale the
records and digital downloads of the Infringing Song, through the execution of
licenses, and/or actually reproducing, and/or selling and distributing physical or
digital or electronic copies of the Infringing Song through various physical and online
sources and applications, including without limitation, through Amazon.com,
Walmart, Target and iTunes, as (without limitation) a single, an instrumental and/or
as part of the soundtracks for the film Frozen or “Frozen: A Broadway Musical”; (d)
publicly performing, broadcasting, displaying, showing, streaming, and distributing
the film Frozen, including without limitation, on or through Google Play, Amazon.
iTunes, Netflix, Disney’s affiliated television stations including ABC and the Disney
Channel, through the sales of DVDs of Frozen on shop.disney.com at
https://www.shopdisney.com/frozen-dvd-1353755, and at other retail outlets
including Walmart, Target, Best Buy and Amazon.com, and at IMAX theaters; (e)
streaming and/or publicly performing or authorizing the streaming and/or public
performance of the Infringing Song through, without limitation, Spotify, YouTube
and/or on Disney’s online channels including at
https://video.disney.com/watch/disney-s-frozen-let-it-go-sequence-performed-by-
idina-menzel-4ecd3e729706a16e5090f1de ; (f) participating in and furthering the
aforementioned infringing acts, and/or sharing in the proceeds therefrom, all through
substantial use of Volar and/or the Remix in and as part of the Infringing Song,
packaged in a variety of configurations and digital downloads, mixes and versions,
and performed in a variety of ways including, but not limited to, audio and video; and
(g) marketing, advertising, selling, and distributing merchandise such as videos and
other copies of the physical and digital copies of the film, dolls and other toys which
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 15 of 24 Page ID #:236
-
16 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
incorporate a recording of the Infringing Song and perform the Infringing Song,
apparel and other merchandise, and other product that reference or incorporate, in
whole or in part, the Infringing Song and/or Frozen; (h) licensing, sub-licensing,
assigning, and transferring rights in and to the Infringing Song, including to toy
manufacturers who in turn have created and sold toys, including dolls that perform
recordings of the Infringing Song; (i) selling tickets to, passes to, copies of, and
access to live and recorded performances of the Infringing Song, Frozen, “Disney
Presents Frozen on Ice,” “Frozen: A Broadway Musical” or other programs, projects,
events, or theme park exhibitions that incorporate, in whole or in part, the Infringing
Song.
54. Without limitation, Plaintiff alleges that within the three years before the
filing of the initial complaint in this action and to date, WALT DISNEY RECORDS
has licensed the master recordings for the Infringing Song for profit, including to toy
manufactures who sell Frozen themed toys incorporating a recording of the Infringing
Song and has marketed, sold and distributed physical or digital or electronic copies of
the Infringing Song otherwise exploited the Infringing Song for profit without
authorization and it continues to do so.
55. Without limitation, Plaintiff alleges that within the three years before the
filing of the initial complaint in this action and to date, WONDERLAND MUSIC
COMPANY, INC., has licensed the Infringing Song for profit, including by licensing
it to the producers of “Frozen: A Broadway Musical” and “Disney Presents Frozen
on Ice,” and to toy manufacturers who sell Frozen themed toys incorporating a
recording of the Infringing Song, and has otherwise exploited the Infringing Song for
profit without authorization and it continues to do so.
56. Without limitation, Plaintiff alleges that within the three years before the
filing of the initial complaint in this action and to date, DISNEY ENTERPRISES,
INC., has licensed the film entitled Frozen, distributed said film and has created and
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 16 of 24 Page ID #:237
-
17 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
produced and/or authorized the creation and production of “Frozen: A Broadway
Musical” and “Disney Presents Frozen on Ice,” each of which production
incorporates and Infringing Song, and otherwise exploited Frozen and the Infringing
Song for profit without authorization and it continues to do so.
57. Without limitation, Plaintiff alleges that within the three years before the
filing of the initial complaint in this action and to date, BUENA VISTA HOME
ENTERTAINMENT, INC., has distributed film entitled Frozen in the United States
online and through the sales of DVDs and BlueRay.
58. Without limitation, Plaintiff alleges that within the three years before the
filing of the initial complaint in this action and to date, THE WALT DISNEY
COMPANY, WALT DISNEY MOTION PICTURES GROUP, INC and WALT
DISNEY PICTURES have marketed, distributed and licensed the film entitled
Frozen and/or authorized the marketing, distribution and license of said film, and
have otherwise exploited the film and its soundtrack for profit.
59. Without limitation, Plaintiff alleges that within the three years before the
filing of the initial complaint in this action and to date, DISNEY INTERACTIVE,
INC., has marketed, distributed and sold the film entitled Frozen and the soundtrack
thereto online, including on Disney branded websites.
60. Plaintiff is informed and believes and thereon alleges that within the three
years before the filing of the initial complaint in this action and to date, R. Lopez and
K. Lopez have committed separate and successive violations of Plaintiff’s copyright
interest in the sound recording and musical composition of Volar and/or the Remix
by, without limitation: licensing the Infringing Song for use in Frozen: A Broadway
Musical, creating, developing, and producing, a reprise of the Infringing Song for
“Frozen: A Broadway Musical.” On information and belief, Plaintiff alleges that said
reprise of Let It Go is a distinct and different version or recording of the Infringing
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 17 of 24 Page ID #:238
-
18 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Song than the version or recording of the Infringing Song used and incorporated in
the Frozen film.
61. Plaintiff is informed and believes and thereon alleges that within the
three years before the filing of the initial complaint in this action and to date, Menzel
has committed separate and successive violations of Plaintiff’s copyright interest in
the sound recording and musical composition of Volar and/or the Remix by, without
limitation: publicly performing and recording the Infringing Song at various
performances and in connection with various television productions, including
without limitation, at a December 31, 2015 performance in Times Square, New York
City for ABC’s “Rockin Eve” which was recorded and broadcast on ABC on
December 31, 2015; and, at a January 26, 2018 performance at the Nicollete Mall in
Minneapolis, Minnesota for “Superbowl LIVE,” presented by Verizon.
62. On information and belief, Plaintiff alleges the foregoing performances
by Menzel and other like performances fall outside the scope of any ASCAP license
because the performances were not limited to the particular venue or concert. Instead,
each alleged performance was intended to be, and was, recorded for television
broadcasts and/or online streaming and were subsequently broadcast on national
television in the United States or streamed online.
63. Plaintiff is informed and believes and thereon alleges that within the three
years before the filing of the initial complaint in this action and to date, Lovato has
committed separate and successive violations of Plaintiff’s copyright interest in the
sound recording and musical composition of Volar and/or the Remix by, without
limitation by streaming and/or publicly performing or authorizing the streaming
and/or public performance of Lovato’s recording of the Infringing Song on her
official YouTube channel at https://www.youtube.com/watch?v=kHue-HaXXzg.
64. Plaintiff is informed and believes and thereon alleges that within the three
years before the date of the filing of Plaintiff’s initial complaint in this action and to
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 18 of 24 Page ID #:239
-
19 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
date, Defendants, and each of them, captured, performed, and distributed songs and
recordings thereof that were unauthorized copies of the sound recording and/or
musical composition of Volar and/or the Remix, and exploited said material in
numerous commercial ways, including without limitation by incorporating it in
Frozen, of which the Infringing Song is a primary component.
65. Plaintiff is informed and believes and thereon alleges that within the three
years before the date of the filing of Plaintiff’s initial complaint in this action and to
date, Defendants, and each of them, infringed Plaintiff’s copyrights in the sound
recording and/or musical composition of Volar and/or the Remix by creating
infringing derivative works from Volar and/or the Remix and by performing and
publishing the Infringing Song to the public, including without limitation, through
live and recorded performances and sales of product incorporating the same.
66. Plaintiff is informed and believes and thereon alleges that Defendants,
and each of them, have infringed Plaintiff’s rights in the sound recording and/or
musical composition of Volar and/or the Remix without Plaintiff’s authorization or
consent.
67. Due to Defendants’, and each of their, acts of infringement, Plaintiff has
suffered general and special damages, including without limitation, lost profits,
royalties, license fees, and other revenues, in an amount to be established at trial.
68. Due to Defendants’ acts of copyright infringement as alleged herein,
Defendants, and each of them, have obtained direct and indirect profits they would
not otherwise have realized but for their infringement of Plaintiff’s rights in Volar
and/or the Remix. As such, Plaintiff is entitled to disgorgement of Defendants’ profits
directly and indirectly attributable to Defendants’ infringement of Plaintiff’s rights in
Volar and/or the Remix in an amount to be established at trial.
69. To the extent that the infringement at issue took place, or will take place,
after the date of Plaintiff’s registration of Volar and/or the Remix, Plaintiff will have
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 19 of 24 Page ID #:240
-
20 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the right to elect to recover statutory damages pursuant to 17 U.S.C. § 504(c), in an
amount to be proven at trial.
70. To the extent that the infringement at issue took place, or will take place,
after the date of Plaintiff’s registration of the Volar and/or the Remix, Plaintiff is
entitled to recover his reasonable attorneys’ fees, pursuant to 17 U.S.C. § 505.
71. Plaintiff is entitled to recover his costs pursuant to 17 U.S.C. § 505.
72. Defendants’ conduct is causing and, unless enjoined by this Court, will
continue to cause Plaintiff irreparable injury that cannot be fully compensated or
measured in monetary terms. Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a
permanent injunction prohibiting the reproduction, distribution, sale, public
performance or other use or exploitation of the Volar and/or the Remix and Infringing
Song.
73. Because Defendants’ conduct as alleged herein was willful and/or
reckless, Plaintiff is entitled to seek enhanced damages, such as statutory damages of
up to $150,000.00 and/or to preclude Defendants from proffering certain affirmative
defenses and legal positions.
SECOND CLAIM FOR RELIEF
(For Indirect Copyright Infringement – Against all Disney Defendants, R.
Lopez, K. Lopez, Menzel and Each of Them)
74. Plaintiff repeats, re-alleges, and incorporates herein by reference as
though fully set forth, the allegations contained in the preceding paragraphs of this
Complaint.
75. Disney Defendants, R. Lopez, K. Lopez, Menzel and each of them are
vicariously and/or contributorily liable for copyright infringement in connection with
the unauthorized exploitation of the Volar and/or the Remix.
76. Within the three years before the filing of Plaintiff’s initial complaint in
this Action, Disney Defendants, R. Lopez, K. Lopez, Menzel, and each of them, with
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 20 of 24 Page ID #:241
-
21 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
knowledge that each of their and third parties’ conduct constituted infringement,
materially contributed to, caused, induced, assisted with, and otherwise facilitated the
unauthorized exploitation of the sound recording and/or musical composition of
Volar and/or the Remix and the creation and monetization of the Infringing Song,
including the reprise of the Infringing Song performed at “Frozen: A Broadway
Musical” and recorded and distributed as part of the soundtrack for said Broadway
production.
77. Within the three years before the filing of Plaintiff’s initial complaint in
this Action, Disney Defendants, R. Lopez, K. Lopez, Menzel , and each of them, had
the right and ability to preclude or put a stop to the unauthorized exploitation of the
Volar and/or the Remix and the creation and monetization of the Infringing Song, and
failed to exercise those rights. And Disney Defendants, R. Lopez, K. Lopez, Menzel,
and each of them, profited through the infringement, including by and through the
collection and/or receipt of license fees and royalties.
78. Within the three years before the filing of the Plaintiff’s initial complaint
in this action, Menzel performed “Let it Go” and authorized the recording thereof for
purposes of broadcasting and other transmission or performance of said recordings
and within the same time period has failed to act to repudiate or halt any license to
use her recorded performance despite her having the ability and opportunity to do so.
79. On information and belief, within the three years before the filing of
Plaintiff’s initial complaint in this action Disney Defendants have granted licenses for
the use of the Infringing Song and have had the right, ability and opportunity to: (a)
forbid the use of the Infringing Song in “Disney Presents Frozen on Ice” and in
“Frozen: A Broadway Musical,” and/or withdraw or repudiate any licenses for same;
(b) halt the reproduction and sales of DVDs of Frozen and/or withdraw or repudiate
any licenses for same; (c) halt the public performance of Frozen, “Disney Presents
Frozen on Ice” and in “Frozen: A Broadway Musical” and/or withdraw or repudiate
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 21 of 24 Page ID #:242
-
22 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
any licenses for same; (d) halt the reproduction, distribution, sales, and performances
of the Infringing Song and/or withdraw or repudiate any licenses for same and to
remove recordings or other iterations of the Infringing Song from channels and
applications owned or controlled by Disney, including without limitation, its websites
and its Spotify and iTunes channels.
80. On information and belief, within the three years before the filing of
Plaintiff’s initial complaint in this action R. Lopez and K. Lopez have had the right,
ability and opportunity to: (a) supervise, control, and/or stop the use of the Infringing
Song in “Disney Presents Frozen on Ice” and in “Frozen: A Broadway Musical”
and/or withdraw or repudiate any licenses for same, including any license provided to
BMI or any other performing rights organization; (b) halt the reproduction and sales
of DVDs of Frozen; (c) halt the public performance of Frozen, “Disney Presents
Frozen on Ice” and in “Frozen: A Broadway Musical”; (d) halt the reproduction,
distribution, sales, and performances of the Infringing Song by calling distributors to
halt sales and performances of the Infringing Song.
81. Defendants’, and each of their, infringing conduct as alleged herein has
caused actual damage to Plaintiff and resulted in profits to the Defendants, and each
of them.
82. Due to Defendants’, and each of their, acts of infringement, Plaintiff has
suffered general and special damages, including without limitation, lost profits,
royalties, license fees, and other revenues, in an amount to be established at trial.
83. Due to Defendants’ acts of copyright infringement as alleged herein,
Defendants, and each of them, have obtained direct and indirect profits they would
not otherwise have realized but for their infringement of Plaintiff’s rights in Volar
and/or the Remix. As such, Plaintiff is entitled to disgorgement of Defendants’ profits
directly and indirectly attributable to Defendants’ infringement of Plaintiff’s rights in
Volar and/or the Remix in an amount to be established at trial.
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 22 of 24 Page ID #:243
-
23 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
84. To the extent that the infringement at issue took place, or will take place,
after the date of Plaintiff’s registration of Volar and/or the Remix, Plaintiff will have
the right to elect to recover statutory damages pursuant to 17 U.S.C. § 504(c), in an
amount to be proven at trial.
85. To the extent that the infringement at issue took place, or will take place,
after the date of Plaintiff’s registration of Volar and/or the Remix, Plaintiff is entitled
to recover his reasonable attorneys’ fees, pursuant to 17 U.S.C. § 505.
86. Plaintiff is entitled to recover his costs pursuant to 17 U.S.C. § 505.
87. Defendants’ conduct is causing and, unless enjoined by this Court, will
continue to cause Plaintiff irreparable injury that cannot be fully compensated or
measured in monetary terms. Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a
permanent injunction prohibiting the reproduction, distribution, sale, public
performance or other use or exploitation of Volar and/or the Remix and the Infringing
Song.
88. Because Defendants’ conduct as alleged herein was willful and/or
reckless, Plaintiff is entitled to seek enhanced damages, such as statutory damages of
up to $150,000.00 and/or to preclude Defendants from proffering certain affirmative
defenses and legal positions. PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays for judgment against all
Defendants, and each of them individually, as follows:
1. A declaration that Defendants have infringed Plaintiff’s rights in Volar
and/or the Remix in violation of the Copyright Act;
2. A declaration that Defendants are directly, vicariously and/or contributorily
liable for copyright infringement, as applicable;
3. A permanent injunction requiring Defendants and their agents, servants,
employees, officers, attorneys, successors, licensees, partners, and assigns,
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 23 of 24 Page ID #:244
-
24 SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and all persons acting in concert or participation with each or any one of
them, to cease directly and indirectly infringing, and causing, enabling,
facilitating, encouraging, promoting, inducing, and/or participating in the
infringement of any of Plaintiff’s rights protected by the Copyright Act;
4. For a constructive trust to be entered over any films, recordings, products,
files, online programs, and other material, and all revenues resulting from
the exploitation of same, for the benefit of Plaintiff.
5. For either statutory damages or the actual damages sustained by Plaintiff
pursuant to 17 U.S.C. § 505;
6. For special and compensatory damages in an amount according to proof in
excess of the jurisdictional limit of this court;
7. For an accounting of all revenues relating to the infringement at issue
and/or costs savings and financial benefits resulting from the infringement.;
8. For injunctive relief from any and all present and/or future exploitation;
9. For pre-judgment and post-judgment interest;
10. For attorney’s fees, where applicable, interest, and costs of suit; and
11. For such other and further relief as to this Court seems just and proper.
Plaintiff demands a jury trial on all issues so triable pursuant to Fed. R. Civ. P.
38 and the 7th Amendment to the United States Constitution.
Respectfully submitted,
Dated: June 11, 2018 By: /s/ Scott Alan Burroughs Scott Alan Burroughs, Esq. David R. Shein, Esq.
DONIGER / BURROUGHS Attorneys for Plaintiff
Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 24 of 24 Page ID #:245