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`COHEN MUSIC LAW
`Evan S. Cohen (SBN 119601)
`esc@manifesto.com
`1180 South Beverly Drive. Suite 510
`Los Angeles, CA 90035-1157
`(310) 556-9800
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`BYRNES HIRSCH P.C.
`Bridget B. Hirsch (SBN 257015)
`bridget@byrneshirsch.com
`2272 Colorado Blvd., #1152
`Los Angeles, CA 90041
`(323) 387-3413
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`WESTERN DIVISION
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`Case No.: 2:21-cv-04806
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`COMPLAINT FOR COPYRIGHT
`INFRINGMENT AND
`DECLARATORY RELIEF
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`JURY TRIAL DEMANDED
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`JAMES REID, an individual, and
`WILLIAM REID, an individual, both
`doing business as The Jesus and Mary
`Chain,
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`v.
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`Plaintiffs,
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`WARNER MUSIC GROUP CORP., a
`Delaware corporation; and DOES 1
`through 10, inclusive,
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`Defendants.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DECLARATORY RELIEF
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`Plaintiffs JAMES REID and WILLIAM REID allege as follows:
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`I
`NATURE OF THE ACTION
`1.
`This is an action brought by James Reid and William Reid, two of the
`founding members of the successful and critically acclaimed alternative musical
`group The Jesus and Mary Chain (“JAMC”), formed in their native Scotland in 1983,
`along with Douglas Hart (“Hart”), against Warner Music Group Corp. (“WMG”), the
`third-largest record company conglomerate in the world, for willful copyright
`infringement and declaratory relief. This action is brought upon the grounds that
`WMG, without any viable or tenable legal grounds for doing so, has stubbornly and
`willfully refused to comply with JAMC’s Notice of Termination duly served pursuant
`to § 203 of the Copyright Act.
`2.
`Since the first Copyright Act was enacted in 1790, that Act and the
`several successive copyright statutes have always had a feature which allows a
`second chance for authors (or their heirs) to reclaim copyrights from unwise grants
`made by authors early on in their careers, close to the creation of the works. While
`the particular features of those laws, and the length of the terms and statutory scheme
`of the terminations involved, have changed and evolved, the strong “second chance”
`concept has remained. In fact, the very first act, the Copyright Act of 1790, borrowed
`that concept from the English Statute of Anne, enacted in 1709, the first copyright
`law. The theme continued in the Copyright Acts of 1831, 1870, and 1909.
`3.
`Likewise, § 203 of the Copyright Act of 1976 modified the Act of 1909
`substantially but continued the “second chance” policy with full force. According to
`the Congressional Record, the purpose of the statute was to protect authors and their
`heirs from “the unequal bargaining position of authors” in dealing with unpublished
`works, because of “the impossibility of [an author] determining [his or her] work’s
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`prior value until it has been exploited.” H.R. Rep. No. 94-1476, at 124 (1976).
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DECLARATORY RELIEF
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`Section 203 provides that authors (a term that includes both songwriters and
`recording artists) may terminate grants of copyright ownership thirty-five (35) years
`after the initial grant, generally computed from the date of the publication of those
`works subject to the grant.
`4.
`But while the Copyright Act confers upon authors the valuable “second
`chance” that they so often need, the authors of sound recordings, in particular, who
`have attempted to avail themselves of this important protection have encountered not
`only resistance from many record labels, they have often been subjected to the
`stubborn and unfounded disregard of their rights under the law and, in many
`instances, willful copyright infringement.
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`II
`JURISDICTION
`5.
`This court has subject matter jurisdiction over this action because it
`arises under the laws of the United States, 28 U.S.C. § 1331, and more particularly,
`because it arises under an Act of Congress relating to copyrights, 28 U.S.C. § 1338,
`namely, the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq.
`6.
`This Court is empowered to issue a declaratory judgment and further
`necessary or proper relief pursuant to 28 U.S.C. §§ 2201 and 2202.
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`III
`VENUE
`7.
`Venue is proper in this district pursuant to 28 U.S.C. § 1400(a), in that
`all of defendants or their agents reside or may be found in this district.
`8.
`Venue is also proper in this district pursuant to 28 U.S.C. § 1391(b) in
`that either: (1) one or more defendants reside in this district, and all defendants reside
`in this state; (2) a substantial part of the events or omissions giving rise to the claim
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`occurred in this district; or (3) at least one defendant resides in this district, if there
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`is no district in which the action may otherwise be brought.
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`IV
`PARTIES
`9.
`Plaintiff JAMES REID a/k/a Jim Reid (“James”) is an individual
`residing in the United Kingdom.
`10. Plaintiff WILLIAM REID (“William”) is an individual residing in
`Tucson, Arizona.
`11. Defendant WARNER MUSIC GROUP CORP. (“WMG”) is a
`corporation duly organized and existing under the laws of the State of Delaware, with
`its principal place of business at 777 South Santa Fe Avenue, Los Angeles,
`California.
`12. Plaintiffs are ignorant of the true names and capacities of the defendants
`sued herein as Does 1 through 10, inclusive, and therefore sue these defendants by
`such fictitious names. Plaintiffs will amend this Complaint to allege the true names
`and capacities of those defendants, when ascertained. Plaintiffs are informed and
`believe, and on that basis allege, that each of the fictitiously named defendants is
`responsible in some manner or capacity for the wrongful conduct alleged herein, and
`that plaintiffs’ losses and damages as alleged herein were proximately and/or directly
`caused by each such defendant’s acts.
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`V
`FACTS COMMON TO ALL CLAIMS
`13. After releasing several singles, James, William, and Hart signed to
`WEA Records Limited (“WEA”), a predecessor of WMG, on March 27, 1985. WEA
`released the first album by JAMC, entitled Psychocandy, on January 21, 1986, to
`widespread critical acclaim.
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DECLARATORY RELIEF
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`14. On January 7, 2019, James and William, a majority of the authors of all
`of the works of JAMC, served a Notice of Termination (the “Notice”) upon WMG,
`and JAMC caused the Notice to be recorded in the United States Copyright Office,
`on May 8, 2019, as document V9964 D190 P1 through P3. A true and correct copy
`of the Notice is attached hereto as Exhibit A.
`15. On December 9, 2020, shortly before the first effective date of
`termination as set forth in the Notice, Melissa Battino of Rhino Entertainment
`Company, another company wholly owned by WMG, wrote to JAMC (the “Battino
`Letter”) and stated that it was WMG’s position that: (1) WMG “is the owner of the
`copyrights throughout the world in each of the sound recordings comprising the
`Noticed Works, and the Notice is not effective to terminate WMG’s U.S. rights;” (2)
`according to the copyright law of the United Kingdom, JAMC “never owned any
`copyrights in the recordings which [JAMC] could terminate;” and (3) the service of
`the Notice “may place [JAMC] in breach of [JAMC’s] contractual obligations under
`the 1985 Agreement,” and that the matter would need to be decided under the law of
`the United Kingdom, citing the so-called “Duran Duran Case” of 2016 [Gloucester
`Place Music Ltd v. Le Bon, EWHC 3091]. A true and correct copy of the Battino
`Letter is attached hereto as Exhibit B.
`16.
`In the Battino Letter, Battino stated, in conclusion, that “Accordingly,
`your attempt to terminate WMG’s rights in and to the Noticed Works is without effect
`and will have no impact on WMG’s continued ownership and exploitation of the
`Noticed Works in the U.S. pursuant to its rights as outlined above.”
`17. As Battino promised, WMG ignored the effective dates of termination
`for the first four releases listed in the Notice, all of which had an effective date of
`termination of January 8, 2021. These four releases are the singles “Never
`Understand,” with b-sides “Suck” and “Ambition,” published February 22, 1985,
`“You Trip Me Up,” with b-sides “Just Out of Reach” and “Boyfriend’s Dead,”
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`published May 24, 1985, “Just Like Honey,” with b-sides “Head,” “Cracked,” and
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`“Just Like Honey (Demo – Oct ’84),” published October 7, 1985, and the album
`entitled Psychocandy, which contained fourteen recordings (and included in the
`fourteen recordings were the “A-sides” of the three singles listed above), published
`on January 21, 1986. Warner Bros. Records, Inc., a predecessor of WMG, registered
`all of the copyrights of the sound recordings of Psychocandy on February 13, 1986,
`under registration number SR0000068974. Later, on June 17, 1988, WEA registered
`three additional recordings that are set forth on the Notice, namely, “Head,” “Just
`Out of Reach,” and “Cracked,” under registration number SR0000093095. The
`recordings described in this paragraph, and all recordings as to which the effective
`date of termination has passed as of the date of the filing of this action (or, in the
`event that any further dates pass during the pendency of this action), shall be referred
`to as the “Terminated Works.”
`18. WMG continued to exploit the Terminated Works after January 8, 2021,
`via physical phonorecords and digital media, with impunity, and are still exploiting
`the recordings as of the filing of this suit.
`19. On April 8, 2021, JAMC served a second notice (the “Second Notice”)
`upon WMG, which included additional recordings that were published from 1987 to
`1992, and which have an effective date of termination no later than 2025. A true and
`correct copy of the Second Notice is attached hereto as Exhibit C. The Second Notice
`has been submitted to the Copyright Office for recordation. On June 9, 2021, JAMC
`served a third notice (the “Third Notice”) upon WMG, which included two additional
`recordings that were published in 1984 (and which were assigned to WEA in 1985),
`and which have an effective date of termination of June 10, 2023. A true and correct
`copy of the Third Notice is attached hereto as Exhibit D. The Third Notice has been
`submitted to the Copyright Office for recordation.
`///
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`VI
`FIRST CLAIM FOR RELIEF FOR
`COPYRIGHT INFRINGEMENT
`(Against All Defendants)
`20. Plaintiffs reallege paragraphs 1 through 19, inclusive, as if fully set
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`forth.
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`21. As of January 8, 2021, JAMC is the exclusive owner of the United States
`copyright in and to Terminated Works, and under § 106 of the Copyright Act, JAMC
`has the exclusive right to reproduce and distribute those sound recordings, including,
`but not limited to, in phonorecords, and to exploit or authorize the exploitation of
`interactive streams and digital downloads of the sound recordings through
`subscription or non-subscription online digital music services.
`22. Despite having full knowledge that the effective date of termination had
`passed, WMG continued to exploit the Terminated Works, as if the Notice had not
`been sent at all, in complete and willful disregard of the law. Moreover, WMG did
`so after taking the untenable position that British law applies to United States
`copyrights, and that authors of United States copyrights can somehow “breach their
`recording contracts” by duly exercising their rights under § 203 of the Copyright Act.
`No federal court in the United States has ever so ruled.
`23. Pursuant to 17 U.S.C. § 504(b), JAMC is entitled to its actual damages,
`including WMG’s gains and profits from the infringement of the Terminated Works,
`as will be proven at trial. In the alternative, if JAMC so elects, pursuant to 17 U.S.C.
`§ 504(c), JAMC is entitled to recover up to $150,000 in statutory damages for each
`registered sound recording infringed, for willful copyright infringement.
`24.
`JAMC is also entitled to recover its attorneys’ fees and costs pursuant
`to 17 U.S.C. § 505, and prejudgment interest according to law.
`25.
`JAMC reserves the right to amend this complaint after full discovery
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`has been completed to supplement this claim with additional infringed works and/or
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`additional acts of infringement.
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`VII
`SECOND CLAIM FOR RELIEF FOR
`DECLARATORY RELIEF
`(Against All Defendants)
`26. Plaintiffs reallege paragraphs 1 through 19, and 21 through 25,
`inclusive, as if fully set forth.
`27. The Notice, the Second Notice, and the Third Notice set forth other
`sound recordings for which the effective date of termination has not yet arrived, as
`of the filing of this action. These works shall be referred to herein as “Future
`Terminated Works.”
`28. Pursuant to 28 U.S.C. §§ 2201 & 2202, a case of actual controversy
`within the jurisdiction of this court has arisen and now exists between plaintiffs on
`the one hand, and WMG on the other hand, concerning their respective rights and
`duties as to the Terminated Works and the Future Terminated Works, in that plaintiffs
`contend that:
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`(a) Plaintiffs James Reid and William Reid, who form a majority of
`the authors of all of the works set forth in the Notice, the Second
`Notice, and the Third Notice, have the right, under United States
`law,
`to
`terminate
`their grants of copyright
`to WMG’s
`predecessors-in-interest, WEA Records Limited, and that British
`law has absolutely no application to any such matters.
`(b) Authors of works have the full right and power to exercise their
`rights under § 203 of the Copyright Act, and, should they do so,
`it cannot be a “breach of contract” of a recording agreement or
`any other agreement, and to so hold would be a violation of §
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`203(a)(5) of the Copyright Act, which provides that no author
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`shall be deprived of his or her termination right, and states,
`explicitly: “Termination of
`the grant may be effected
`notwithstanding any agreement to the contrary.”
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`(c) A foreign choice of law provision in a recording agreement has
`no effect upon the application of United States copyright law to
`issues relating to the application of the United States Copyright
`Act (and § 203 specifically) to United States copyrights, and
`cannot support a claim of “breach of contract” by the recording
`artists for exercising their rights under United States law.
`29. Defendants, on the other hand, contend that:
`(a)
`Plaintiffs do not have the right to serve a Notice of Termination
`upon the current grantee (WMG) because the works at issue are
`subject to only British law, and plaintiffs are not “authors” of the
`works.
`Plaintiffs “may” be breaching the 1985 Agreement by sending the
`Notice, because British law applies to this controversy.
`If a recording agreement so provides, foreign law may be applied
`to the rights of recording artists in United States copyrights and
`may be used to deny terminations that would be otherwise valid
`under the United States Copyright Act.
`30. Plaintiffs desire a judicial determination of their rights and duties
`regarding the Terminated Works and the Future Terminated Works, and a declaration
`that WMG’s wrongful retention of the sound recording rights violates the Copyright
`Act.
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`(b)
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`(c)
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`31. Such a judicial determination of the rights and duties of the parties is
`necessary at this time, in that WMG has repeatedly violated plaintiffs’ rights, and has
`denied JAMC the right to own the United States copyright in and to the sound
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`recordings for the post-termination period. By doing these acts in the past, and unless
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`enjoined from engaging in like behavior in the future, WMG will be allowed to
`destroy the value and salability of the subject sound recordings, in direct
`contradiction of the second chance guaranteed by the Copyright Act.
`32. Moreover, WMG has stated its clear intent to not honor the Notices
`served by plaintiffs, with regard to any works, and WMG has thereby created an
`actual and immediate disagreement with plaintiffs, even going so far as to threaten
`plaintiffs with a “breach of contract” action for having the temerity to exercise their
`rights under § 203. However, upon the service of the Notices, the rights of plaintiffs
`became vested pursuant to § 203(b)(2). Plaintiffs, as creators of the Terminated
`Works and Future Terminated Works, should not have to wait until a date far in the
`future after the applicable effective dates have passed and the resolution of (possibly
`piecemeal) litigation over the validity of their vested ownership rights, and, in the
`interim, lose the ability to license, exploit, and otherwise monetize those valuable
`copyrights. Indeed, it would also be an inefficient use of judicial resources to compel
`plaintiffs to file a different suit after each effective date of termination has passed.
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`VIII
`PRAYER FOR RELIEF
`WHEREFORE, plaintiffs pray for judgment as follows:
`1.
`On the First Claim, pursuant to § 504(b) of the Copyright Act, for all of
`WMG’s gains and profits attributable to the infringement, in an amount to be proven
`at trial; or, in the alternative, upon plaintiffs’ election, for statutory damages for
`willful copyright infringement against WMG and other defendants, jointly and
`severally, in the amount of $150,000 for each of the seventeen (17) registered works
`infringed, for a total of $2,550,000, and additional damages for all of the sound
`recordings infringed up to an including the date of trial, pursuant to § 504(c) of the
`Copyright Act;
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`///
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DECLARATORY RELIEF
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`2.
`On the Second Claim, that the termination of the grant of rights to
`WMG, and its affiliated, subsidiary, predecessor, and successor companies, is valid,
`both with regard to the Terminated Works (i.e., works for which the effective date of
`termination has passed), and Future Terminated Works (i.e., works as to which the
`effective date of termination has not yet arrived);
`3.
`For an accounting of all gains, profits, and advantages derived from
`WMG’s acts of infringement and for other violations of law;
`4.
`For a preliminary and permanent injunction enjoining and restraining
`WMG, and its respective agents, servants, directors, officers, principals, employees,
`representatives, subsidiaries and affiliated companies, successors, assigns, and those
`acting in concert with them or at their direction, and each of them, from continued
`denial and disregard of the Notices of Termination served by JAMC, to the extent
`that WMG bases said grounds on the legal and factual issues that are adjudicated in
`this suit;
`5.
`For costs of suit incurred herein;
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`For reasonable attorney’s fees as part of the costs, pursuant to §505 of
`the Copyright Act; and
`7.
`For such other and further relief as the court should deem just and
`proper.
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`Dated: June 14, 2021
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`COHEN MUSIC LAW
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`By: /s/ Evan S. Cohen
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`Evan S. Cohen
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`Attorney for Plaintiffs James Reid
`and William Reid
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`DEMAND FOR JURY TRIAL
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`Plaintiffs hereby demand a jury trial.
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`Dated: June 14, 2021
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`COHEN MUSIC LAW
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`By: /s/ Evan S. Cohen
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`Evan S. Cohen, Esq.
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`Attorney for Plaintiffs James Reid and
`William Reid
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`COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DECLARATORY RELIEF
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`- 12 -
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