`SOCIALCOASTER, INC., d/b/a
`BVIRAL
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`Plaintiff,
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`v.
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`KELI NETWORK, INC., d/b/a
`JELLYSMACK,
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`Defendant.
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`) Case No. _______________
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF TENNESSEE
`AT NASHVILLE
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`COMPLAINT
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`Plaintiff SocialCoaster, Inc., d/b/a BVIRAL (“Plaintiff” or “BVIRAL”) by and through
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`counsel, files this Complaint against Keli Network, Inc., d/b/a JellySmack (“JellySmack” or
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`“Defendant”) and states as follows:
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`THE PARTIES
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`1.
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`Plaintiff BVIRAL is a corporation organized under the laws of the State of
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`Delaware, with its principal place of business at 1441 US Highway 96 W, Suite 2 #120, Franklin,
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`Tennessee 37064. BVIRAL is a tech-centric media publisher & entertainment studio. Among
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`other things, BVIRAL acquires rights in and monetizes online viral videos. Through this process,
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`BVIRAL obtains exclusive intellectual property rights in these videos.
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`2.
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`Defendant JellySmack is an entity organized under the laws of the State of
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`Delaware with
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`its principal place of business at 450 Park Ave South, 3rd Floor,
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`New York, NY 10016. Its registered agent for service of process is the Corporation Trust
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`Company, 2109 Orange Street, Wilmington, DE, 19801. JellySmack is an entity in the business of
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`generating and exploiting online content.
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`Case 3:24-cv-00450 Document 1 Filed 04/12/24 Page 1 of 10 PageID #: 1
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`JURISDICTION AND VENUE
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`3.
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`The Court has personal jurisdiction over Defendant because Defendant has
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`sufficient contacts with this forum such that it has purposefully availed itself of the privilege of
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`conducting activities within this state, including a substantial part of the activities that give rise to
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`Plaintiff’s causes of action, all of which were targeted to this forum state.
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`4.
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`The Court has subject matter jurisdiction over this action because it arises under
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`the laws of the United States pursuant to 28 U.S.C. § 1331.
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`5.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because a
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`substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this judicial
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`district.
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`I.
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`INTRODUCTION.
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`FACTUAL BACKGROUND
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`6.
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`This is a Complaint for copyright infringement by BVIRAL against JellySmack for
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`JellySmack’s repeated exploitation and monetization of BVIRAL’s copyright-protected content.
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`7.
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`As of the time of the filing of this Complaint, at issue are one hundred and sixty-
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`five (165) infringements of online videos (the “Content”) in which BVIRAL has all rights pursuant
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`to exclusive licenses that it has with the third-party creators of each of the videos comprising the
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`Content. Appended hereto as Exhibit A is a schedule setting forth each of the videos comprising
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`the Content in which BVIRAL has rights, as well as pertinent information concerning BVIRAL’s
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`registered copyrights for each of the videos and pertinent information concerning JellySmack’s
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`infringement of the same.
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`8.
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`Based on the foregoing, and as set forth more fully herein, BVIRAL seeks monetary
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`damages in excess of $3,750,000.00—including statutory damages and its attorneys’ fees and
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`2
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`costs—in addition to injunctive relief restraining JellySmack from engaging in infringing activity
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`relating to BVIRAL’s Content on online platforms and otherwise.
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`9.
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`JellySmack’s infringement of BVIRAL’s intellectual property rights is ongoing,
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`and JellySmack continues to post, and monetize, content infringing on the rights of BVIRAL.
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`BVIRAL continues to apply for, and be granted, copyright registrations in these additional videos.
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`10.
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`As a result, BVIRAL expects subsequent amendments this Complaint to account
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`for JellySmack’s continuing and future infringing conduct.
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`II. BVIRAL ACQUIRED EXCLUSIVE RIGHTS IN THE CONTENT.
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`11.
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`As set forth above, BVIRAL acquired intellectual property rights in the Content
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`pursuant to a series of Exclusive License Agreements, (each, an “ELA”), with the original creators
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`of each of the videos comprising the Content. As relevant to this action, the terms of each ELA
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`are materially the same. A true and accurate copy of an exemplar ELA, covering a video at issue
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`in this litigation and redacted to exclude information irrelevant to this action, is attached hereto as
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`Exhibit B.
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`12.
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`As set forth in each of the ELAs, BVIRAL obtained “an exclusive, sub-licensable,
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`transferable, royalty-free and irrevocable license” of the Content. (See Ex. A, ¶ I.1).
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`13.
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`The transfer included a broad grant of rights to BVIRAL, including the rights to
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`“manage, use, refrain from using, or alter the [Content] by any and all methods or means” and to
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`allow others to do the same. (Id., ¶ I.2). The ELAs include broad rights for BVIRAL to use the
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`Content in “in Media and throughout Distribution Channels, by itself, its successors or assigns, for
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`any purpose whatsoever as Licensee in its sole discretion may determine.” (Id.).
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`14.
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`Finally, as relevant here, the ELAs grant BVIRAL the right to engage in any-and-
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`all copyright enforcement actions with respect to the Content. As set forth in the exemplar ELA,
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`the licensors appoint BVIRAL as an attorney-in-fact with respect to the Content, and the licensors
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`allow BVIRAL to:
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`i.
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`ii.
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`(Id., ¶ I.3).
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`15.
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`take any such action as may from time to time be necessary to effect,
`transfer, or assign the rights granted to [BVIRAL] herein, including without
`limitation copyright-related actions; and
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`enforce all claims and prosecute actions against any and all claims from the
`past, present, and future use of the [Content] by unauthorized third parties.
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`In connection with each of the ELAs, the original creators of the Content made
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`certain representations and warranties to BVIRAL relevant to this action and with respect to the
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`Content.
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`16.
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`First, the creator represented and warranted to BVIRAL that they each “ha[d] the
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`full right, power and authority to enter into, full perform, and grant the rights under Section I.”
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`(Id., ¶ III.1).
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`17.
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`Second, the creators represented and warranted that each of them “[was] the sole
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`and exclusive owner of the entire worldwide right, title and interest (including the copyrights and
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`all property rights) in and to” the Content. (Id., ¶ III.2).
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`18.
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`Third, the creators represented and warranted that they “ha[d] not previously
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`entered into any other agreement in connection with the [Content] and has not done or permitted
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`to be done anything which may curtail or impair any of the rights granted” to BVIRAL under the
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`ELA. (Id., ¶ III.4).
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`19.
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`Pursuant to the ELAs, BVIRAL has applied for and received copyright registrations
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`for each of the videos comprising the Content. The registration numbers for each of the pieces of
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`material comprising the Content are set forth in the schedule attached hereto as Exhibit A.
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`III. BVIRAL & THE CONTENT CREATOR BUSINESS MODEL.
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`20.
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`Through its ordinary course of business, and pursuant to its rights under the ELAs,
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`BVIRAL polices its intellectual property rights to determine if and when other accounts post or
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`otherwise exploit BVIRAL’s materials online.
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`21.
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`In instances where BVIRAL determines that another user is monetizing material in
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`which BVIRAL has exclusive rights, BVIRAL will submit a takedown to the relevant digital
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`service provider (“DSP”) pursuant to the provisions of the Digital Millennium Copyright Act
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`(“DMCA”). See 17 U.S.C. § 512(g)(1).
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`22.
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`In addition to issuing this takedown notice, BVIRAL will, on most occasions, have
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`an employee reach out to the infringing poster. In this communication, BVIRAL will provide
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`evidence of its exclusive rights in the material and request that the infringing poster either evidence
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`its own rights in the material or for the infringing poster to voluntarily remove the material.
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`23.
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`This rights management process, and BVIRAL’s policing efforts in general, are
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`critical to BVIRAL’s ultimate success as a business. The material which BVIRAL licenses derives
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`its value from how much exposure it receives online, i.e. how many “view” or “clicks” that a video
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`can generate. Unauthorized use by unlicensed third parties devalues and dilutes the material,
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`causing actual damage to BVIRAL and causing BVIRAL to lose actual revenue each time that
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`material receives exposure outside of BVIRAL and its network.
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`24.
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`Further, this dampening of the material’s value disincentivizes content creators
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`from licensing with and otherwise engaging with BVIRAL, since the protection of content
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`creators’ rights is a cornerstone of the value proposition provided by BVIRAL.
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`25.
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`As a result, BVIRAL must, and does, remain vigilant in protecting the intellectual
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`property rights of itself and its content creator counterparts.
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`IV. JELLYSMACK’S INFRINGMENT.
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`26.
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`As referenced above, through BVIRAL’s ordinary course of business policing
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`efforts, it determined that JellySmack was repeatedly posting and monetizing BVIRAL’s
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`exclusively licensed materials, including the Content, on JellySmack’s own social media pages
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`and accounts.
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`27.
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`BVIRAL issued DMCA takedown notices to the respective DSP for each of the
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`pieces of Content.
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`28.
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`Additionally, BVIRAL reached out, on multiple occasions to JellySmack to attempt
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`to reach a resolution concerning JellySmack’s continued infringement of BVIRAL’s intellectual
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`property, including the Content.
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`29.
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`In some instances, these attempts were successful and JellySmack removed or
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`otherwise took down the infringing content.
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`30.
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`In other instances, JellySmack would refuse to voluntarily take down the post,
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`would request that BVIRAL allow the post to remain online despite JellySmack’s lack of any
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`rights in the material, or would ignore BVIRAL’s communications on the issue.
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`31.
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`JellySmack’s continued posting and monetization of the Content constitutes
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`copyright infringement.
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`32.
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`JellySmack is no neophyte in the online content space. According to a blog
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`published on JellySmack’s website, JellySmack is a “unicorn” company, which it defines as a “a
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`privately held startup that’s valued at over $1 billion dollars.”1 In that same blog post, JellySmack
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`1 See 10 Things You Should Know About Jellysmack | Creator Post.
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`touts that it content reaches “nearly 45% of all Americans” with “125 million viewers per month”.2
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`In terms of measuring engagement, JellySmack claims:
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`With 204+ billion captured views and 647+ million tagged and categorized videos
`as of January 2022, we’re able to maximize the performance of every post to yield
`incredible results for our creators. It’s these unique capabilities and industry-
`leading innovations that make Jellysmack a force to be reckoned with.3
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`33.
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`Despite these assertions, and despite JellySmack’s purported prominence in this
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`industry, its business practices in licensing is, at best, suspect, and its failure to license the content
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`which it exploits is a direct cause of the issues in this case.
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`34.
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`For example, in many instances where BVIRAL would reach out to JellySmack as
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`a part of its rights management process, BVIRAL would provide JellySmack a copy of its relevant
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`ELA and request that JellySmack provide BVIRAL with any such similar documentation from
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`JellySmack.
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`35.
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`If JellySmack would respond, at all, to this request, it would provide nothing more
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`than a screenshotted image of an online direct message between a JellySmack account and the
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`content creator requesting use of the subject video. Rarely would these images include dates,
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`timestamps, or any other information relevant to determining whether JellySmack’s nonexclusive
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`rights in the material predated BVIRAL’s exclusive rights or vice versa.
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`36.
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`During no point during the rights management process for any of the Content did
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`JellySmack provide BVIRAL with any documentation, similar to the ELAs, which would have
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`granted JellySmack exclusive rights in any of the material comprising the Content.
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`37.
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`Further, as evidenced on Exhibit A, JellySmack has made multiple posts and
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`reposts of the same infringing material to different social media pages. Tellingly, many of these
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`2 Id.
`3 Id.
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`posts occurred after BVIRAL submitted a DMCA takedown request to the DSP for the original
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`post to be removed.
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`38.
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`For example, as set forth in Exhibit A, BVIRAL owns exclusive rights in the video
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`titled “Contortionist displays extreme flexibility while lifting weights”. BVIRAL has a registered
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`copyright in this video, with the registration number PA0002449671.
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`39.
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`BVIRAL’s exclusive rights did nothing to stop JellySmack’s repeated use and
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`monetization of this video. Between October 12, 2022, and August 22, 2023, JellySmack posted
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`this video eighteen (18) times, despite the fact that BVIRAL contacted JellySmack concerning the
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`taking down of these infringing posts. BVIRAL finally issued a takedown notice to the DSP on
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`February 29, 2024.
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`40.
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`This is not an anomaly. A majority of the Content at issue in this litigation has been
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`exploited by JellySmack in multiple instances on multiple platforms. All of the Content at issue
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`in this litigation has been subject to a BVIRAL DMCA takedown notice to the relevant DSP.
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`41.
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`Given the pervasive nature and scope of JellySmack’s infringement, its relative size
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`and prominence in this industry, the haphazard nature in which it procured, or failed to procure,
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`rights in the materials it posted, and its actions in continuing to post or repost infringing content
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`which had been previously been taken down or flagged as a result of BVIRAL’s DMCA takedown
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`notices to the DSP, JellySmack’s infringements are willful and intentional in this case.
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`42.
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`Based on the foregoing, BVIRAL has been left with no choice but to seek the
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`intercession of the Court and assert the following claims for both monetary and injunctive relief:
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`COUNT I – COPYRIGHT INFRINGEMENT
`17 U.S.C. § 501 et seq.
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`The allegations contained in the foregoing Paragraphs are incorporated herein by
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`43.
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`reference and made a part of this Count as if fully set forth herein.
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`44.
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`At all relevant times, BVIRAL has owned all intellectual property rights, including
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`rights in the copyrights to, the Content.
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`45.
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`As set forth on Exhibit A, BVIRAL has registered each piece of material
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`comprising the Content with the Copyright Office.
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`46.
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`Defendant has infringed on BVIRAL’s copyrights in the Content by knowingly and
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`willfully making repeated posts embodying the copyright-protected Content as set forth on Exhibit
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`A.
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`47.
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`As further set forth above, and based on the pervasive nature and scope of
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`JellySmack’s infringement, its relative size and prominence in this industry, the haphazard nature
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`in which it procured, or failed to procure, rights in the materials it posted, and its actions in
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`continuing to post or repost infringing content which had been previously been taken down or
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`flagged as a result of BVIRAL’s DMCA takedown notices to the DSP, this copyright infringement
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`was willful.
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`48.
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`49.
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`Defendant is liable for copyright infringement pursuant to 17 U.S.C. § 501.
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`As a result of Defendant’s infringement, BVIRAL has suffered and continue to
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`suffer actual damages in lost profits, damages to the value of the Content, opportunity, and
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`goodwill.
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`50.
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`Further, for a substantial number of the videos comprising the Content, the effective
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`date of BVIRAL’s copyright registration predates the commencement of JellySmack’s
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`infringement, or BVIRAL registered its copyrights or the effective date of BVIRAL’s copyright
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`registration was within three months after first publication of the material such that BVIRAL is
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`entitled to statutory damages and its attorneys’ fees pursuant to 17 U.S.C. § 504 and 505. See 17
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`U.S.C. § 412.
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`51.
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`Based on JellySmack’s misconduct in this case, BVIRAL seeks its actual damages,
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`statutory damages, disgorgement of Defendant’s profits—in an amount to be proven at trial and
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`expected to exceed $3,750,000.00—as well as its attorneys’ fees and costs, and injunctive relief as
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`set forth in the Prayer for Relief below, in connection with this claim.
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`PRAYER FOR RELIEF
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`WHEREFORE, BVIRAL demands judgment of JellySmack as follows:
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`1.
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`For temporary and permanent injunctive relief enjoining and restraining
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`JellySmack from infringing on BVIRAL’s intellectual property rights, including its rights in the
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`Content, online or in any other manner; and
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`For compensatory damages in an amount to be proven at trial; and
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`For statutory damages in an amount to be proven at trial; and
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`For disgorgement of Defendant’s profits in an amount to be proven at trial; and
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`For its attorneys’ fees and costs for bringing this action; and
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`For the costs of this cause, and
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`For such other and further General Relief as may be appropriate.
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`This the 12th day of April, 2024.
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`Respectfully submitted,
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` /s Jacob T. Clabo
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`Jay S. Bowen, TN BPR No. 2649
`Jacob T. Clabo, TN BPR No. 36760
`Shackelford Bowen McKinley & Norton, LLP
`1 Music Circle South, Suite 300
`Nashville, TN 37203
`Tel: (615) 329-4440
`Fax: (615) 329-4485
`jbowen@shackelford.law
`jclabo@shackelford.law
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`Attorneys for Plaintiff SocialCoaster, Inc. d/b/a
`BVIRAL
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