INDEX NO. 654005/2018 FILED: NEW YORK COUNTY CLERK 08/13/2018 10:48 AM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION WARNER CHAPPELL MUSIC LIMITED, Index No: Date Purchased: Plaintiff, SUMMONS WITH NOTICE - against MARCO BERROCAL D/B/A BOURNE CO., Plaintiff designates New York County as the place of trial Defendant. To the Above-Named Defendant: PLEASE TAKE NOTICE THAT YOU ARE HEREBY SUMMONED to appear in this action by serving a notice of appearance or demand for a complaint on the Plaintiff at the address set forth below within 20 days after service of this Summons (not counting the day of service itself), or within 30 days after service is complete if the summons is not delivered to you personally within the State of New York. YOU ARE HEREBY NOTIFIED THAT should you fail to serve a notice of appearance or demand for a complaint, judgment will be entered against you by default for the relief demanded below. The basis of venue is that Defendant Marco Berrocal does business as Bourne Co., with a principal place of business in New York County. Dated: New York, New York August 13, 2018 PRYOR CASHMAN LLP By: s/ Donald S. Zakarin Donald S. Zakarin Ross M. Bagley 7 Times Square New York, New York 10036 (212) 421-4100 Counsel for Plaintiff Warner Chappell Music Limited 1 of 4 FILED: NEW YORK COUNTY CLERK 08/13/2018 10:48 AM NYSCEF DOC. NO. 1 INDEX NO. 654005/2018 RECEIVED NYSCEF: 08/13/2018 Defendant’s Address: Marco Berrocal D/B/A Bourne Co. 35 West 45th Street, 2nd Floor New York, NY 10036 2 2 of 4 FILED: NEW YORK COUNTY CLERK 08/13/2018 10:48 AM NYSCEF DOC. NO. 1 INDEX NO. 654005/2018 RECEIVED NYSCEF: 08/13/2018 NOTICE: The Nature of Relief Sought Is: Defendant Marco Berrocal D/B/A Bourne Co. (“Bourne”) has claimed ownership of rights in certain musical compositions granted to the predecessor-in-interest of Plaintiff Warner Chappell Music Limited (“Warner”) in a 1956 agreement (the “1956 Agreement”). In addition, Bourne has asserted claims around the world with Performing Rights Organizations with which Warner has agreements providing for the payment to Warner of public performance income earned by compositions subject to the 1956 Agreement, causing them to either pay Bourne or to freeze payments, thereby tortiously interfering with Warner’s agreements with the Performing Rights Organizations. In addition, in so doing, Bourne has breached the 1956 Agreement (as Bourne is successor-in-interest to original counterparty to the agreement with Warner’s predecessor-ininterest), converted payments due to Warner and rights owned by Warner and engaged in slander of title, causing public performance royalties due to Warner to be held in suspense by Performing Rights Organizations around the world, depriving Warner of its contractual entitlement to such income. In addition, Bourne has also been paid directly by certain of the Performing Rights Organizations and retained performance income properly due to Warner with respect to compositions subject to the 1956 Agreement. As a result of Defendant’s actions as aforesaid, Plaintiff has suffered substantial damages in an amount to be proven at trial in this action arising out of the 1956 Agreement. Bourne has variously claimed the right to terminate the rights of Warner under the 1956 Agreement pursuant to the so-called British reversionary rights in 2015 and also claimed, inconsistently therewith, that Warner’s rights, contrary to the express terms of the 1956 Agreement, were terminated on notice in 1994, notwithstanding that Warner continued to exercise its rights under the 1956 Agreement (subject to Bourne’s interference with such rights with the Performing Rights Organizations around the world) and Bourne continued to accept royalties from Warner, period by period for over twenty years thereafter in accordance with the 1956 Agreement. Despite having contended that Warner’s rights were terminated, Bourne has failed and refused to produce, despite demand therefor, all documents evidencing the rights that Bourne supposedly acquired from others, including from Jimmy Van Heusen and his publishing company, refusing to provide copies of all agreements, including post-1956 agreements and songwriter grants of rights to songs subject to the 1956 Agreement, both those written after 1956, as well as the many work for hire agreements under which the composers, Jimmy Van Heusen and Johnny Burke, wrote the most valuable songs for motion picture studios, which are not subject to any British reversionary termination rights and which were not subject to termination by Bourne on any grounds, and any and all “renewal” agreements applicable to any songs that entered United States copyright renewal periods prior to 1972. Upon information and belief, Bourne acquired all such agreements and documents that it has refused to produce pursuant to its alleged agreement with Jimmy Van Heusen. In addition, even if the British reversionary termination rights were applicable to any of the songs – and it is not, in any event, applicable to any of the songs written on a work for hire basis, nor is it applicable to songs written and delivered after 1956 and subject to post-1956 3 3 of 4 INDEX NO. 654005/2018 FILED: NEW YORK COUNTY CLERK 08/13/2018 10:48 AM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2018 agreements, which Bourne has failed to provide – such termination rights would only be applicable, on information and belief, to Britain and Canada and not to any of the other countries in which Bourne has caused the income from the songs (including income payable by Bourne to the heirs of the songwriters) to be diverted and/or frozen, depriving Warner of, upon information and belief, hundreds of thousands of dollars, even without the addition of interest at 9% per annum since the date such payments were diverted and/or frozen. The Relief Sought Is: 1. A declaratory judgment confirming Warner’s continued subpublishing rights in at least certain of the compositions subject to the 1956 agreement, including a declaration that: a. the 1956 agreement has not been validly terminated; and b. Warner’s continued subpublishing rights in the compositions remain in full force and effect; 2. Specific performance of the 1956 Agreement, compelling Bourne to advise, in writing, foreign performance rights organizations that Warner continues to retain its rights to the identified compositions and directing them to pay to Warner all of the performance royalties that have been held in suspense for the compositions subject to the 1956 Agreement; 3. Damages in an amount to be established at trial, but believed to be in excess of $500,000.00 plus interest allowed by law, costs, expenses and attorneys’ fees; and 4. Such other and further relief that this Court deems just and proper. Reservation of Rights: Plaintiff expressly reserves its right to amend its claims in this action to include other causes of action and other parties as may be appropriate. Should Defendant fail to appear herein, judgment will be entered by default for the relief sought in this action plus interest allowed by law, costs, expenses and attorneys’ fees, and for further relief that this Court deems just and proper. 4 4 of 4