jury demand complaint · promoted "rawls sings sinatra" to the general public, including...

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

2018 MAY -2 PM 4: I I NINA RAWLS, individually and as sole successor trustee of the Lou and Nina Rawls Trust

D.S. DIS T RI" COURT [11001.1_ DISTRICT OF TN

Plaintiff,

V. Case No.:

JURY DEMAND PARADISE ARTISTS, INC.

Defendants.

COMPLAINT

COMES NOW the Plaintiff and brings this action and does allege as follows.

JURISDICTION AND VENUE

1. These claims arise under the Copyright Act, 17 U.S.0 §§ 101 et seq., the Lanham

Trademark Act, 15 U.S.C. §§ 1051 et seq. and the statutory and common law of the State of

Tennessee seeking injunctive relief, damages, attorney's fees and costs.

2. This court has federal question jurisdiction over the subject matter of this action

under 17 U.S.C. § 501(b); 15 U.S.C. § 1221; 28 U.S.C. Section 1331; 28 U.S.C. Section 1338(a);

and 28 U.S.C. § 1367.

3. This court has personal jurisdiction over Defendants under the Tennessee long-

arm statute. Tenn. Code Ann. § 20-2-214.

4. Venue is proper in this district under 28 U.S.C. § 1400(a) and 28 U.S.C. §

1391(b).

of 15 Case 3:18-cv-00417 Document 1 Filed 05/02/18 Page 1 of 15 PageID #: 1

THE PARTIES

5. Plaintiff Nina Rawls is an individual who resides in Uniontown, Ohio. She is the

widow of Lou Rawls and the sole successor trustee of the Lou and Nina Rawls Trust.

6. Defendant Paradise Artists, Inc. is a corporation organized under the laws of the

State of California. Defendant's principal place of business is 108 E Matilija Street, Ojai,

California 93023. Defendant's web site states that Defendant is one of America's premiere

talent agencies and that Defendant negotiates and produces concert, package and theatrical tours

as well as television projects. Defendant's web site states that Defendant books artists and tours

throughout the world.

FACTS

7. Lou Rawls ("Mr. Rawls") was a world renowned singer and songwriter. His 52

years in entertainment included an astonishing 60-plus albums, three Grammy wins, 13 Grammy

nominations, one platinum album, five gold albums, a gold single and a Star on the Hollywood

Walk of Fame.

"Seasons 4 U"

In or around 1998, at his own expense, Mr. Rawls recorded a collection of songs

he entitled "Seasons 4 U." The songs included "Turn! Turn! Turn! (To Everything There Is A

Season)"; "Spring Again"; "Here Comes The Sun"; "Good Day Sunshine"; "Blue Skies"; "Those

Lazy, Hazy, Crazy Days of Summer"; "Summertime"; "Everything Must Change"; "Autumn

Leaves"; "Singin' In The Rain"; "Baby It's Cold Outside"; "Wonderful World"; and "Spring

Can Really Hang You Up The Most". In 1998, the "Seasons 4 U" album was released on Rawls

and Brokaw Records, a record company owned by Mr. Rawls and his manager.


9. At no time did Mr. Rawls or Plaintiff authorize the release of the "Seasons 4 U"

album, by any other record company or distributor, either in physical (CD) or electronic (digital)

form.

"Rawls Sings Sinatra"

10. In or around May 2003, Mr. Rawls recorded a collection of songs he entitled

"Rawls Sings Sinatra." The songs included "Come Fly With Me"; "Nice and Easy"; "All the

Way"; "Learning the Blues"; "That's Life"; "The Lady is a Tramp"; "Summer Wind"; "The

Second Time Around"; "My Kind of Town"; "In the Wee Small Hours of the Morning"; "They

Can't Take That Away From Me"; and "One For My Baby (and One More For the Road)"

(collectively, the "Sinatra Recordings"). Mr. Rawls paid for the production of the Sinatra

Recordings, at a cost of approximately One Hundred Thousand Dollars ($100,000). Mr. Rawls

owned all right, title and interest in and to the copyrights in the sound recordings embodied in the

Sinatra Recordings. On June 10, 2004, Mr. Rawls obtained Federal Copyright Registration No.

SR 349-705 for the Sinatra Recordings.

11. In or around June, 2003, Mr. Rawls hired a professional photographer and spent

approximately Twenty Thousand Dollars ($20,000) to obtain photographs of his image for the

"Rawls Sings Sinatra" album cover and for use in advertising the album (collectively, the

"Sinatra Photographs"). Mr. Rawls owned all right title and interest in and to the copyrights in

the Sinatra Photographs. Mr. Rawls obtained Federal Copyright Registration No. VA 1-248-191

for the Sinatra Photographs. The Sinatra Recordings and the Sinatra Photographs are referred to

jointly as the "Sinatra Album Materials."

12. In or around July, 2003, Mr. Rawls and his professional representatives

commenced negotiations with Savoy Label Group, LLC ("SLG"), to determine whether an


agreement could be reached for SLG to license the Sinatra Album Materials from Mr. Rawls and

to commercially release, distribute and promote them as a "Rawls Sings Sinatra" album.

13. During the course of the negotiations, SLG asked Mr. Rawls to provide the

Sinatra Album Materials. Mr. Rawls provided the Sinatra Album Materials to SLG, but only on

the express condition that SLG would not release the them unless and until the parties entered

into a written license and distribution agreement.

14. No agreement was ever reached between Mr. Rawls and SLG regarding the

"Rawls Sings Sinatra" album and, accordingly, no license and distribution agreement was ever

signed. Mr. Rawls never authorized SLG to commercially release "Rawls Sings Sinatra" to the

general public.

15. In spite of SLG's representation that it would not do so, and in spite of SLG's

legal obligations not to do so, commencing in or around September 2003, SLG sold and

promoted "Rawls Sings Sinatra" to the general public, including through SLG's website, its

distributors and retailers. In addition, SLG affixed a copyright notice on the album cover and on

the compact disc of the album wrongfully attributing the copyright in the Sinatra Recordings and

the Sinatra Photographs to SLG.

16. At the time, Mr. Rawls was informed that SLG had advertised its wrongful

distribution and sale of the "Rawls Sings Sinatra" album using Mr. Rawls' name and photograph.

Mr. Rawls informed SLG that its wrongful advertising, distribution and sale of the album was in

knowing violation of Mr. Rawls' rights, because there was no agreement, written or otherwise.

Mr. Rawls demanded that SLG cease all advertising, distribution, sale or other exploitation of the

album. Despite several demands from Mr. Rawls that it stop doing so, SLG continued to


advertise, distribute, sell and otherwise exploit the Rawls Album, including on SLG's own

website.

17. On July 2, 2004, Mr. Rawls filed a complaint in the United States District Court

for the Central District of California entitled Lou Rawls v. SLG, LLC and Does 1-10, Case No.

CV 04-4861 (the "Complaint"). In the Complaint, Mr. Rawls alleged against SLG: copyright

infringement of the Sinatra Recordings; copyright infringement of the Sinatra Photographs;

violation of the right of publicity; violation of the right of privacy; conversion of the Sinatra

Recordings and the Sinatra Photographs; and unjust enrichment.

18. Mr. Rawls died on January 6, 2006. All right, title and interest in and to the

Sinatra Recordings and the Sinatra Photographs, including the copyrights, as well as all claims

and debts asserted in the lawsuit, became assets and debts of the Lou and Nina Rawls Trust

Agreement, dated March 10, 2005, as amended. On April 18, 2006, Mr. Rawls' widow Nina

Rawls, as sole successor Trustee, was substituted as the plaintiff in the legal action.

19. In or around September, 2006, the parties to the legal action entered into a

Settlement Agreement and General Release (the "Settlement Agreement"). The Settlement

Agreement provided that all right, title and interest in the "Rawls Sings Sinatra" album was

vested in Plaintiff.

20. At no time did Mr. Rawls or Plaintiff authorize the release of the "Rawls Sings

Sinatra" album, by any record company or other distributor, either in physical (CD) or electronic

(digital) form.


Actions of Defendant Paradise Artists

21. In February 2018, Plaintiff was informed that Mr. Rawls' "Seasons 4 U" and

"Rawls Sings Sinatra" albums (collectively, the "Rawls' Recordings") were available on Apple's

iTunes and other digital music platforms. Plaintiff was shocked, as neither Mr. Rawls nor

Plaintiff had ever authorized distribution of the Rawls Recordings on digital music platforms.

22. Upon further inquiry, Plaintiff learned that several of the digital music platforms

listed "Paradise Musicwerks" as the record label for the Rawls Recordings. Upon further

inquiry, Plaintiff learned that "Paradise Musicwerks" was the name used by Defendant for its

activities in distributing musical recordings to digital music platforms.

Defendant's Admissions

23. Defendant's executives Bill Omot and Howard Silverman have admitted that

Defendant distributed the "Seasons 4 U" album to the following ninety-six (96) digital music

platforms, each of which have reported sales:

24/7 Entertainment GmbH International

7 Digital

7 Digital International

Amazon

Amazon International

Amazon DOD

Amazon Unlimited

Amazon Unlimited International

AT&T Mobility

AWA International

Base point International

Beats Music

Beezik International

Bell Mobility International

blinkbox Music

blinkbox Music International

Dada International


Deezer

Deezer International

eMusic

eMusic International

France Telecom, S.A. International

Freenet digital International

Gaana International

Goo le Play

Goo le Play International

Guvera

Guvera International

HMV Canada International

Hutchison 3G UK Ltd. International

iHeartRadio

iHeartRadio (Reporting Only)

iTunes/A le

iTunes/A le International

JB Hi-Fi International

lala media

Last.fm

Last.fm International Line International Livewire MediaNet MediaNet International MixRadio MixRadio International Mobile Money International MOG MOG International MSN MusicLoad International MusicMatch MusicNow/ Full Audio Muve Muve International MUZ.RU CJSC International M s ace M s ace International M xer Omnifone Omnifone International Pandora


Pandora ANZ International Pulselocker Rara.com Rara.com International Rdio Rdio International Real Netw Rha sod /Na ster Rha sod /Na ster International Ruckus Sirafy Africa International Sinify GmbH International Slacker Slacker International Sony Connect Spiral Front Spotify S oti International Starzik SARL International Taihe Music Group International Telefonica International Tidal Tidal International Turntable.fm Verizon Virgin FR International Vitality Internatioinal Xbox Music Xbox Music International Yandex International YouTube YouTube International YouTube-Red YouTube-Red International Zi o International ZTE International

24. Defendant's executives Bill Omot and Howard Silverman have admitted that

Defendant distributed the "Rawls Sings Sinatra" album to the following ninety-five (95) digital

music platforms, each of which have reported sales:

24/7 Entertainment GmbH International

7 Digital

7 Digital International


Amazon

Amazon International

Amazon DOD

Amazon Unlimited

Amazon Unlimited International

An hami International

AT&T Mobility

Base point International

Beats Music

Beezik International

Bell Mobility International

blinkbox Music

blinkbox Music International

Dada International

Deezer

Deezer International

eMusic

eMusic International

Freenet digital International

Gaana International

Goo le Play

Goo le Play International

Guvera Guvera International

HMV Canada International

Hutchison 3G UK Ltd. International

iHeartRadio

iHeartRadio (Reporting Only)

iTunes/A le

iTunes/A le International

JB Hi-Fi International

lala media

Last.fm

Last.fm International

Livewire

Livewire International

MediaNet

MediaNet International

MixRadio


MixRadio International

Mobile Money International

MOG

MOG International

MSN

MusicLoad International

MusicMatch

MusicMe International

MusicNow/ Full Audio

Musiwave International

Muve International

MUZ.RU CJSC International

M s ace

M s ace International

Myxer

Omnifone

Omnifone International

Pandora

Pandora ANZ International

Pocket group International

Pulselocker

Pulselocker

Rara.com

Rara.com International

Rdio

Rdio International

Real Netw

Rha sod /Na ster

Rha sod /Na ster International

Ruckus

Simfy GmbH International

Sony Connect

Spiral Front

Spotify

S oti International

Starzik SARL International

Taihe Music Group International

Telecom Italia S. .A International

Telefonica International


Tidal

Tidal International

Turntable.fm

Verizon

Virgin FR

Vitality International

Xbox Music

Xbox Music International

Yandex International

YouTube

YouTube International

YouTube-Red

YouTube-Red International

ZTE International

25. Defendant released the Rawls Albums to digital music platforms with no

promotion or marketing whatsoever, likely because Defendant's principals knew that Defendant

lacked the rights to distribute the albums in the first place. Nonetheless, Defendant's actions

deprived Plaintiff of the opportunity to release "Rawls Sings Sinatra" for the first time, which

Plaintiff planned to do on the 15th anniversary of Mr. Rawls' death (January 1, 2021). Indeed,

Plaintiff planned to license the album to a major record label, which would have released the

album and supported the release with a substantial marketing and promotion campaign.

Similarly, Plaintiff also planned to license and re-release the "Seasons 4 U" album. Defendant's

wrongful actions deprived Plaintiff of these and other lucrative opportunities, including

marketing tie-ins with a potential major motion picture based on the life of Lou Rawls.


CAUSES OF ACTION

26. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1

through 25.

Counts 1 Through 1,248

27. Defendant's unauthorized reproduction of and distribution of the thirteen (13)

sound recordings on the "Seasons 4 U" album to ninety-six (96) digital music providers

constitutes one thousand two hundred and forty-eight (1,248) counts of willful copyright

infringement.

Counts 1,249 Through 2,388

28. Defendant's unauthorized reproduction of and distribution of the twelve (12)

sound recordings on the "Rawls Sings Sinatra" album to ninety-five (95) digital music providers

constitutes one thousand one hundred and forty (1,140) counts of willful copyright infringement.

Count 2,389

29. In connection with Defendant's unauthorized distribution of the Rawls

Recordings, Defendant used Mr. Rawls' famous name, without authorization from Mr. Rawls or

(after his death) from Plaintiff, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §

1125(a)(1)(A). Defendant's actions constitute willful infringement of Plaintiff's unregistered

trademark in the name Lou Rawls.

Count 2,390

30. In connection with Defendant's unauthorized distribution of the Rawls

Recordings, Defendant used Mr. Rawls' name and photographs and without authorization from

Mr. Rawls or (after his death) from Plaintiff, in violation of Mr. Rawls' statutory right of

publicity as provided by Tenn. Code Ann. § 47-25-1103.


31. Defendant's conduct has at all times been knowing, willful and with complete

disregard of Plaintiff's rights.

32. Defendant's conduct has caused, is causing and, unless enjoined by this Court,

will continue to cause Plaintiff great and irreparable injury that cannot be fully compensated or

measured in money. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.0 § 502,

Plaintiff is entitled to preliminary and permanent injunctions prohibiting Defendant's further

infringements of Plaintiff's copyrights.

33. Pursuant to 17 U.S.C. § 504(b), Plaintiff is entitled to actual damages, including

Defendant's profits, as will be proven at trial.

34. In the alternative to actual damages, pursuant to 17 U.S.C. § 504(c), for

Defendant's infringement of the thirteen (13) sound recordings on "Seasons 4 U," Plaintiff is

entitled to receive the maximum amount of statutory damages for willful copyright infringement,

$150,000 per sound recording, in the total amount of $1,950,000, multiplied by 96 (for the 96

digital platforms to which Defendant distributed the recordings), in the total amount of

$187,200,000.

35. In the alternative to actual damages, pursuant to 17 U.S.C. § 504(c), for

Defendant's infringement of the twelve (12) sound recordings on "Rawls Sings Sinatra,"

Plaintiff is entitled to receive the maximum amount of statutory damages for willful copyright

infringement, $150,000 per sound recording, in the total amount of $1,800,000, multiplied by 95

(for the 95 digital platforms to which Defendant distributed the recordings), in the total amount

of $171,000,000.

36. Plaintiff is entitled to her costs, including reasonable attorney's fees, pursuant to

17 U.S.C. § 505.


PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendant and for the following

relief:

A. An injunction enjoining Defendant from reproducing, distributing or otherwise

using the Rawls Recordings, as provided under 17 U.S.C. § 502 and 15 U.S.C. § 1116(a).

B. An accounting of all gains and profits derived from Defendant's acts of

infringement of the Rawls Recordings.

C. Plaintiff's actual damages and any profits attributable to Defendant's

infringements of the Rawls Recordings, in accordance with the proof, as provided under 17

U.S.0 § 504(b) or, in the alternative, the maximum amount of statutory damages pursuant to 17

U.S.C. § 504(c), as set forth in Paragraphs D-E, below.

D. For infringement of the sound recordings on the "Seasons 4 U" album, the

maximum statutory damages for willful copyright infringement, provided pursuant to 17 U.S.C.

§ 504(c), in an amount no less than $187,200,000.

E. For infringement of the sound recordings on the "Rawls Sings Sinatra" album, the

maximum statutory damages for willful copyright infringement, provided pursuant to 17 U.S. C.

§ 504(c), in an amount no less than $171,000,000.

F. For violation of the statutory right of publicity, the amount of $1,000,000 for each

year that Defendant used Mr. Rawls name, image and likeness in connection with the Rawls

Recordings, from 2005 through 2018, in the total amount of $13,000,000.

G. For pre judgment and post judgment interest, according to law.

H. Plaintiff s attorney's fees and full costs in this action, as provided under 17 U.S.C.

§ 505 and other applicable law.


I. Such other and further relief as the Court may find just and proper under the

circumstances.

DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b), and otherwise, Plaintiff respectfully

demands a trial by jury.

Dated: May 2', 2018

Respectfully submitted,

By: Isl Vincent H. Peppe Vincent H. Peppe (BPR # 015594) Law Office of Vincent Peppe PLLC 4976 Darlington Drive Nashville, Tennessee 37211 Telephone: 615-714-0547 Facsimile: 1-615-334-0463 [email protected]

Attorney for Plaintiff


jury demand complaint · promoted "rawls sings sinatra" to the general public, including...

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