Harper?Harper S1 SCAN 1 Filed 08/09/16 Page 1 of 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TOWNSEND GRIFFIN, HELEN CHERRIGALE TOWNSEND, Plaintiffs, vs. CASE NO: COMPLAINT FOR COPYRIGHT INFRINGEMENT AND DEMAND FOR JURY TRIAL EDWARD CHRISTOPHER SHEERAN, p/k/a ED SHEERAN, ED SHEERAN LIMITED, GINGERBREAD MAN RECORDS, AMY WADGE, AMY WADGE RECORDS, JAKE GOSLING, STICKY STUDIOS, MUSIC PUBLISHING, LTD. UK, MUSIC PUBLISHING, ATLANTIC RECORDING CORPORATION d/b/a, ATLANTIC RECORDS, ATLANTIC RECORDS, (UK), MUSIC, BUCKS MUSIC GROUP and WARNER MUSIC GROUP CORPORATION, d/b/a ASYLUM RECORDS, WARNER MUSIC GROUP, LTD. (UK), Defendants. COMPLAINT FOR COPYRIGHT INFRINGEMENT COME NOW, the Plaintiffs, TOWNSEND GRIFFIN, CHERRIGALE TOWNSEND, and HELEN MCDONALD, who, by and through their undersigned counsel(s), hereby sue the enumerated Defendants, Amy Wadge, Individually, and d/b/a Amy Wadge Records, Jake Gosling, Individually, and d/b/a STICKY STUDIOS, Edward Christopher Sheeran Case Document 1 Filed 08/09/16 Page 2 of 16 (professionally known as "Ed Sheeran") Individually, and d/b/a GINGERBREAD MAN RECORDS, MUSIC PUBLISHING, LTD. UK, MUSIC PUBLISHING, ASYLUM RECORDS, ATLANTIC RECORDS, INC., ATLANTIC RECORDS, UK, MUSIC, BUCKS MUSIC GROUP and WARNER MUSIC GROUP and would further allege as follows: Nature of the Case 1. This is an action for copyright infringement, in violation of 17 U.S.C. 101, et seq., arising from the Defendants' unauthorized reproduction, distribution and/or public performance of the Plaintiffs? copyrighted musical composition ?Let ?3 Get it On (Let?s) using the hit song, ?Thinking Out Loud? (?Thinking?), written by Amy Wadge and Ed Sheeran and subsequently recorded by Ed Sheeran. Jurisdiction 2. The Court has jurisdiction over the subject matter of this action under 28 U.S.C. 1338(a) because this action arises under the Copyright Act of 1976, 17 U.S.C. 101, et. seq. 3. This Court has personal jurisdiction over the enumerated Defendants because they have directed their activities and marketing of the infringing works to New York residents, and New York residents are able to purchase, download, and stream the infringing compositions and recordings. As such, the Defendants have engaged in continuing business activities in the instant jurisdiction. 4. The instant Defendants are, at a minimum, constructively aware of their continuous and substantial commercial interactions with New York residents. Case Document 1 Filed 08/09/16 Page 3 of 16 5. The Defendant, Mr. Ed Sheeran, has performed, and he and the other Defendants have authorized, organized, and promoted performances of the infringing work numerous times in New York. 6. The Defendants have generated touring revenues from the unauthorized and unlawful exploitation of the infringing work, including receiving substantial revenue from such exploitation in New York. 7. The Defendants, individually and collectively, have generated substantial revenue from the exploitation of the infringing works in New York. 8. New York has a considerable interest in adjudicating disputes wherein New York residents are the target of the harm resulting from exploitation of the infringing work. 9. The Defendants herein, despite being primarily based in the U.K., facilitated the infringing acts occurring in the U.S., and actively participated in a scheme aiding, inducing, and contributing to copyright infringement in the US. 10. For those Defendants primarily based out of the U.K., given their willful and knowing exploitation of the infringing work in New York, each could reasonably anticipate being sued in a court in the U.S., and New York, speci?cally. 11. Venue is proper in this Judicial District pursuant to 28 U.S.C 1391 1391 and 1400(a) respectively, because Defendants maintain of?ces in and are subject to personal jurisdiction in this Judicial District and have committed unlawful acts of infringement in this Judicial District. Par?ties 12. The Plaintiffs at issue herein are the heirs of Mr. Ed Townsend, co-writer of the lyrics of Let ?s Get On. and creator of its musical composition, and are engaged, among other Case Document 1 Filed 08/09/16 Page 4 of 16 things, in conducting the business of music publishing and otherwise commercially availing musical composition copyrights of the music oer. Ed Townsend. 13. Upon reasonable information and belief, the Defendant, Edward Sheeran, is a musician, singer, songwriter, and producer living in the United Kingdom who does business in New York, Individually, and under Gingerbread Man Records. Sheeran was nominated for a Grammy Award for Best Record, Best Performance, and Song of the Year in 2016 for Thinking. Sheeran conducts systematic and continuous business in New York including, but not limited to, public performances, and selling albums and merchandise to the citizens of New York. The Defendant, Edward Sheeran has reproduced, distributed, and publicly performed the infringing work and sound recording and/or authorized its reproduction, distribution, and public performance. 14. Upon reasonable information and belief, the Defendant, Ed Sheeran, Ltd, conducts systematic and continuous business in NewYork and is the commercial entity which handles touring arrangements for the Defendant, Edward Sheeran, including any performances of the infringing work in New York. 15. Upon information and belief, Mr. Jake Gosling, (?Mr Gosling?) is a singer, music producer, and songwriter living in the United Kingdom who does business, Individually, and as Sticky Studios and The Movement, and has been nominated for a Grammy for Best Record in 2016 for Thinking. The Defendant, Mr. Gosling, regularly conducts business in the State of New York and in the instant jurisdiction. The Defendant, Mr. Gosling, claims authorship and/or production credit for Thinking, and shares in the income derived from the exploitation of Thinking. The Defendant, Mr. Gosling is violating Plaintiffs? copyrights in Le! ?s by claiming ownership in, and sharing income derived from the exploitation of Thinking. Case Document 1 Filed 08/09/16 Page 5 of 16 16. Upon reasonable information and belief, Amy Wadge, (?Ms Wadge?) is a singer, music producer, and songwriter living in the United Kingdom who does business, Individually, and as Amy Wadge Studios and Amy Wad ge Records. The Defendant, Ms.Wadge is a music producer and songwriter who regularly conducts business in the State of New York and in this jurisdiction. The Defendant, Ms. Wadge, claims authorship and ownership of Thinking, and shares in the income derived from the exploitation of Thinking. The Defendant, Ms. Wadge, is Violating Plaintiffs? copyrights in Let '5 by claiming ownership in, and sharing income derived from the exploitation of Thinking. 17. Upon reasonable information and belief, MUSIC PUBLISHING, LTD. UK is a business entity headquartered in the United Kingdom and regularly doing business in New York through its affiliate, MUSIC PUBLISHING. 18. Upon reasonable information and belief, MUSIC PUBLISHING is a Delaware corporation with its principal place of business in New York, New York. Upon reasonable information and belief, is the music publisher for Thinking and Let ?s and is in a unique position to have known about and/or participated in the exploitation of either or both works. 19. Upon reasonable information and belief, BUCKS MUSIC GROUP is a business entity headquartered in the United Kingdom and regularly doing business in New York. 20. Upon reasonable information and belief, WARNER MUSIC GROUP, d/b/a Asylum Records, is a Delaware corporation with its principal place of business in New York. Upon reasonable information and belief, MUSIC is a business entity headquartered in the United Kingdom and regularly doing business in New York. Case Document 1 Filed 08/09/16 Page 6 of 16 22. Upon reasonable information and belief, ASYLUM RECORDS is a Delaware limited liability company regularly doing business in New York. The Defendant, Asylum, is responsible for the manufacturing, distribution, marketing and promotion of Thinking and has benefitted extensively from the sale of Thinking. 23. Upon reasonable information and belief, ATLANTIC RECORDS is a Delaware corporation with its principal place of business in New York. The Defendant, Atlantic Records, is owned by Warner Music Group which also has its principal place of business in New York. The Defendant, Atlantic Records, is responsible for the production, manufacture, distribution, marketing, sale and promotion of Thinking in the United States. 24. Upon reasonable information and belief, Defendant, Tunes, LLC is a Delaware limited liability company doing business in New York Tunes"). The Defendant, Tunes, is a music publisher of the infringing composition Thinking and has authorized its reproduction, distribution, and public performance. 25. Upon reasonable infomiation and belief, the Defendant, Music Publishing, Ltd. Publishing") is a UK corporation which as offices doing business in New York. The Defendant, Publishing, is a music publisher of the infringing composition, Thinking, and has authorized its reproduction, distribution, and public performance. Ownership ofLet?S Get it On 26. The musical composition, Let ?s Ger It On, was written by Marvin Gaye (?Gaye?) and Ed Townsend (?Townsend?) and recorded by Gaye, in 1973. 27. It is undisputed by all parties that the Townsend Heirs, Gaye Heirs and David Pullman own 100% of the copyright. Case Document 1 Filed 08/09/16 Page 7 of 16 The Heart of Let?s Get It On 28. The harmonic, melodic, and elements of composition in Let?s Get [t Or: have made this song one (1) of the most famous songs in and soul music history. Let ?s has been anthologized by celebrated music producers and ranked as the 20th greatest breakbeat of all time. 29. Let begins with an iconic melody, harmony and that are recognized around the world. The prominence of the bass line and drum composition throughout Let ?3 make these compositional elements qualitatively important to the musical work as a whole. The combination of these elements is the driving force of this composition. Thinking Out Loud 30. The enumerated Defendants released Thinking by the artist, Ed Sheeran on or about September 24, 2014, including without limitation, on the album, X. 31. Upon reasonable information and belief, Thinking has hit the number one (1) position on the national charts in eleven (1 1) countries since 2014, and has been certi?ed platinum multiple times by the Recording Industry Association of America, indicating sales in excess of one million (1,000,000) copies sold in the United States, as well as substantial sales internationally. 32. According to the Of?cial Charts Company, the recording of Thinking is one (1) of the best-selling singles of all time in the U.K., having sold over 2 million (2,000,000) copies. 33. Upon reasonable information and belief, the Defendants have authorized the use of Thinking in compilation albums, television commercials and music videos. 34. Speci?cally, the music video for Thinking is one (1) of the most popular sponsored music videos on YouTube. Prior to the viewing of Thinking on YouTube, an advertisement Case Document 1 Filed 08/09/16 Page 8 of 16 appears for which the Defendants are entitled to and receive a royalty or other revenue. As of April 2016, Thinking has been played over one billion (1,000,000,000) times on YouTube. Ed Sheeran 35. The instant Defendant, Mr. Edward Sheeran, professionally known as ?Ed Sheeran?, is a musical artist. The Defendant, Mr. Edward Sheeran, experienced a sharp and sudden rise as an international music star in less than eighteen (18) months as a direct result of the commercial success of Thinking, the lead single in the United States from Sheeran?s debut album, Defendants Infringed Let?s Get It On 36. The harmonic progressions, melodic and elements, as observed in Let have made Let ?3 one of the most well-known and instantly recognizable songs in history. 37. These elements of Let 's composition are the ?heart? or qualitatively, the most important elements of the song as indicated by critical acclaim, 38. The Defendant, Mr. Edward Sheeran, has had access to Let ?s by virtue of its wide dissemination, and, in fact, has referenced and performed the song while performing Thinking. In addition, the Defendant, Edward Sheeran, by and through the Defendant, had increased access to Let ?5 because both songs are administered through Futhermore, Let ?s is available on every major digital retailer and streaming service including, without limitation, iTunes and Amazon. 39. The Defendants copied the "heart" of Let ?s and repeated it continuously throughout Thinking. 40. The melodic, harmonic, and compositions in are n_ot the product of independent creation. Case Document 1 Filed 08/09/16 Page 9 of 16 41. The melodic, harmonic, and compositions of Thinking are substantially and/or strikingly similar to the drum composition from Let 42. The instant Defendants cepied, reproduced, distributed, and/or publicly performed copyrightable elements of Let speci?cally, the melodic, harmonic, and compositions of Let without authorization. 43. To date, each of the Defendants reproduced, distributed, publicly performed, and/or authorized the reproduction, distribution, and public performance of the infringing composition and sound recording Thinking and each of the Defendants continues to infringe Let 44. No one ever licensed the Let '5 melodic, harmonic, and compositions to the Defendants. The Infringement by the Defendants is Willful 45. The Defendants were noti?ed of the infringement on or about April 15, 2015 by electronic mail or telephone (the "Notice"). 46. Despite receiving the Notice the Defendants continued to exploit Thinking without permission to use the melodic, harmonic, and compositions copied from Let the infringed work. 47. Despite the Notice, all of the Defendants have continued to infringe Plaintiffs? copyrighted work. 48. The infringement by the Defendants is willful, as evidenced by their continuing to infringe Let ?s after the Notice was provided to them. 49. The Defendants knowingly and intentionally infringed Plaintiffs? rights. The Defendants' collective knowledge and intent are established by, among other things, the fact that Case 1:16-cv-06309 Document 1 Filed 08/09/16 Page 10 of 16 Defendants to this day have neither sought, nor obtained, a license from the Plaintiffs. All conditions precedent to the maintenance and/or establishment of the instant action have been satisfied and/or, otherwise, waived by the Defendants. FIRST CAUSE OF ACTION (Copyright Infringement - l7 U.S.C. 101., easeq.) 50. The Plaintiffs repeat and reallege Paragraphs One (I) through Forty?Nine (49), as though fully set forth herein. 51. The Defendants' reproduction, distribution, and public performances of the infringing work, Thinking, continue to this day, and Defendants have not deigned to compensate Plaintiffs for the use of the copyrighted work in Let ?s to be used for Thinking, despite the fact that they have received money and other substantial bene?ts from Plaintiffs? composition. 52. The Defendants' reproduction, distribution, public performance of Thinking, and authorizing others to do the same, infringes Plaintiffs? exclusive rights under the Copyright Act. 53. The conduct of the Defendants is knowing and willful. 54. As a direct and/or proximate result of the Defendants? wrongful conduct, the Plaintiffs have been irreparany harmed, suffered damage, and Defendants have pro?ted in an amount to be determined at trial. SECOND CAUSE OF ACTION (Infringement of Copyright Claim for Statutory Damages) 55. The Plaintiffs reallege and incorporate Paragraphs One (1) through orty?N ine (49), and Fifty?One (5 1) through Fifty-Four (54), as though fully set forth herein. 56. The Defendants infringed Plaintiffs? exclusive copyright in "Let when they copied substantial parts of it. Such copying was wholly unauthorized, as it was without any manner of Case 1:16-cv-06309 Document 1 Filed 08/09/16 Page 11 of 16 license, consent, or authority from the Plaintiffs, the copyright owners. By virtue of this unauthorized copying, the Defendants have realized illegal revenues. 57. The Defendants infringed on Plaintiffs? exclusive copyright in "Let when the Defendants mechanically reproduced and released sound recordings, including compact discs and other phono-records embodying "Thinking". Such reproduction and release was wholly unauthorized, as it was without any license or consent of authority from the Plaintiffs. By virtue of this unauthorized commercial exploitation, Defendants have realized illegal revenues. 58. The Defendant, UNIVERSAL, infringed on Plaintiffs? exclusive copyright in "Let when Defendants distributed and sold sound recordings, including compact discs, phone?records and video recordings, embodying "Thinking". Such reproduction and release was wholly unauthorized, as it was without any license or consent of authority from the Plaintiffs. By virtue of this unauthorized commercial exploitation, Defendants have realized illegal revenues. 59. The Defendants infringed Plaintiffs? exclusive copyright in "Let when they issued and/or authorized others to issue licenses to third parties for the use, publication, and exploitation of kinking". Said licenses were issued without any consent or authority from Plaintiffs, the copyright owners of "Let from which "Thinking" was substantially copied. By Virtue of this unauthorized commercial exploitation, Defendants have realized illegal revenues. 60. As a direct and/or proximate result of the Defendants' infringement on Plaintiffs? exclusive copyright in Let Plaintiffs have suffered damages. Said injuries are continuing and will not abate in the future. 61. Pursuant to 17 U.S.C. 504 the Plaintiffs are entitled to statutory damages. 62. The above-chronicled actions of enumerated Defendants were committed willfully, and by reason thereof, in the event that Plaintiffs elect to recover statutory damages, they are Case 1:16-cv-06309 Document 1 Filed 08/09/16 Page 12 of 16 entitled to an increase of the award to a sum of up to $150,000 pursuant to 17 U.S.C. 504 MO) THIRD CAUSE OF ACTION (False Designation of Origin Under the Lanham Act ?43 15 U.S.C. ?1125 (a)-Against all Defendants) 63. The Plaintiffs reallege and incorporate Paragraphs One (1) through orty-Nine (49), as though fully set forth herein. 64. By distributing, marketing, and otherwise exploiting the Infringing Song in interstate commerce while giving themselves credit for the Plaintiffs? work, the Defendants have falsely represented to the public that Defendants have independently created, and are authors of, Thinking. 65. As a result, members of the public have been deceived and/or confused into believing that Thinking is the independent creation of the Defendants. The Plaintiffs are seriously injured by such deception, in that it negatively impacts their ability to distribute, market, and otherwise exploit Let This deception also has a negative impact on the Plaintiffs because they are not receiving the credit due for the success experienced by Thinking. 66. By engaging in the wrongful conduct described herein and above, Defendants have violated Section 43 of the Lanham Act, 15 U.S.C. ?1 125 for False Designation of Origin. Because the Defendants have engaged in the conduct described herein with fraudulent intent, and with the actual knowledge of the harm being caused to the Plaintiffs by such wrongful conduct/acts, this is an exceptional case which merits an award of treble damages and attorney?s fees against said Defendants. 67. The Defendants' acts and conduct have caused, and will continue to cause, Plaintiffs great and irreparable injury that cannot be adequately compensated or measured in damages. Case 1:16-cv-06309 Document 1 Filed 08/09/16 Page 13 of 16 Plaintiffs have no adequate remedy at law and will suffer immediate and irreparable loss, damage, and injury unless Defendants are restrained and enjoined from continuing to engage in such wrongful conduct. FOURTH CAUSE OF ACTION ("Reverse Passing Off? Under the Lanham Act 15 U.S.C. ?1125 Against All Defendants) 68. The Plaintiffs reallege and incorporate paragraphs One (1) through Forty-Nine (49), and Sixty-Four (64) through Sixty?Seven (67), as though fully set forth herein. 69. The Defendants have appropriated and copied the original expression of Let without consent, credit, or compensation, by writing, performing, and recording Thinking. 70. As a result, members of the public have been deceived and/or confused into believing that Thinking is the independent creation of the Defendants. The Plaintiffs are seriously injured by such deception and misattribution, in that it negatively impacts their ability to distribute, market, and otherwise avail themselves of Let By engaging in the wrongful conduct described herein and above, Defendants have violated section 43 of the Lanham Act, l5 U.S.C. 125 for Reverse Passing Off. Because the Defendants have engaged in the conduct described herein with ?audulent intent, and with the actual knowledge of the harm being caused to the Plaintiffs by such wrongful conduct/acts, this is an exceptional case which merits and award of treble damages and attorney?s fees against the Defendants. 72. The Defendants? aggregate acts and conduct have caused, and will continue to cause, the Plaintiffs great and irreparable injury that cannot be adequately compensated or measured in damages. The Plaintiffs have no adequate remedy at law and will suffer immediate and Case 1:16-cv-06309 Document 1 Filed 08/09/16 Page 14 of 16 irreparable loss, damage, and injury unless the Defendants are restrained and enjoined from continuing to engage in such wrongful conduct. FIFTH CAUSE OF ACTION (Unjust Enrichment?Against All Defendants) 73. Plaintiffs reallege and incorporate Paragraphs One (1) through Forty?Nine (49), as though fully set forth herein. 74. By reason of the foregoing facts, the Defendants, and each of them, have become unjustly enriched at the expense of Plaintiffs by failing to license the right use Let ?s and by realizing monetary gain from their unauthorized use of Let 75. The Defendants, and each of them, have been unjustly enriched in an amount which cannot be precisely ascertained at this time, but will be ascertained according to proof at trial. SIXTH CAUSE OF ACTION (Demand for Accounting-Against All Defendants) 76. The Plaintiffs reallege and incorporate Paragraphs One (1) through Forty-Nine (49), Fifty-One (51) through Fifty-Four (54), and Fifty?Six (56) through Sixty-Two (62), as though fully set forth herein . 77. As explicated herein above, the Plaintiffs have an interest in all of the money that is generated from the distribution and any other exploitation of Thinking in that they are the copyright owners of Let Moreover, Plaintiffs have an interest in any future exploitation of Thinking and any royalties which result from any such future exploitation. 78. The Plaintiffs are informed and believe that Defendants have generated an undetermined?yet substantial?amount of money, due to the commercial success of Thinking and the album through sales, distribution, promotion, circulation, and other exploitation of Thinking. Case 1:16-cv-06309 Document 1 Filed 08/09/16 Page 15 of 16 79. The amount of money/proceeds due from the Defendants is unknown to Plaintiffs and cannot be ascertained without an accounting of all of the Defendants? financial records related to Thinking. 80. As a result of the Defendants' actions, Plaintiffs have been damaged in an amount to be proven after an accounting has been conducted. Accordingly, Plaintiffs hereby request that the Court order an accounting of all of Defendants' financial records related to Thinking in order to determine the sums rightfully due to Plaintiffs and that those sums be paid to them. SEVENTH CAUSE OF ACTION (Preliminary and Permanent Injunction) 81. The Plaintiffs repeat and reallege Paragraphs One (1) through Forty-Nine (49), Fifty- One (51) through ifty-F our (54), and Fifty-Six (56) through Sixty?Two (62), as though fully set forth herein. 82. The Plaintiffs have a likelihood of eventual success in this litigation. 83. The Plaintiffs will suffer irreparable harm if injunctive reliefis not granted by this Court. 84. The Defendants' unauthorized distributions of Plaintiffs? intellectual property are causing irreparable harm to the instant Plaintiffs. DEMAND FOR JURY TRIAL 85. The Plaintiffs, respectfully, request a trial by jury on all claims asserted in this Complaint. WHEREFORE, the Plaintiffs, collectively, respectfully request that judgment be entered against the enumerated Defendants, as follows: A. For judgment that Defendants have violated the Copyright Act and that all such violations have been willful; and Case 1:16-cv-06309 Document 1 Filed 08/09/16 Page 16 of 16 B. For judgment entering a preliminary and permanent injunction (and waiver of bond) enjoining and restraining Defendants and their of?cers, agents, servants, employees and attorneys and all those in active concert or participation with them, from infringing Plaintiffs exclusive rights under the Copyright Act by reproducing, distributing and publicly perfonnin Thinking, and authorizing others to the same; and C. For judgment assessing Defendants for the damages suffered by Plaintiffs, including an award ofactual damages and Defendants' pro?ts attributable to the infringement, or statutory damages (at Plaintiffs? election) under the Copyright Act, as well as costs and attorney's fees to the full extent provided for by Sections 501 504 and 505 of the Copyright Act, 17 U.S.C. 501, 504 and 505; and D. For a judgment directing that Defendants deliver up for destruction to Plaintiffs all copies of Thinking in their possession or under their control, pursuant to 15 U.S.C. 1118 and 17 U.S.C. 503; and E. For judgment granting such other, further, and different relief as to the Court may seem just and proper, including Plaintiffs? costs and reasonable attomeys' fees. DATED: July 28, 2016 FRANK RICE, P.A. Attorneys for Plaintiffs .. By: Patrick R. Frank, Esq. Florida Bar Number: 0642770 Keisha D. Rice, Esq. Katherine L.Viker, Esq. Frank Rice, PA. 325 West Park Avenue Tallahassee, Florida 32301 Telephone: (850) 629-4168 Facsimile: (850) 629?4184 Attorney(s) for Plaintiffs