capitol records llc et al v (1)

JS 44C/SDNY

REV. 4/201414 CVCIVIL COVER SH

The JS-44 civil cover sheet and the informationcontained herein neither replace nor supplement the filing and service ofpleadings orotherpapersas required bylaw, except as provided bylocal rules ofcourt. This form, approved by theJudicial Conferenceof the United States inSeptember 1974, is requiredfor use of the Clerkof Courtforthe purpose ofinitiating the civil docket sheet.

PLAINTIFFS DEFENDANTSCapitol Records, LLC and Universal-Polygram INternational Publishing, Inc. Monster Energy Company

SEr 2

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS (IF KNOWN)Cowan, Liebowitz & Latman, P.C.1133 Avenue of the Americas, New York, NY 10036(212)790-9200

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)(DO NOT CITEJURISDICTIONAL STATUTES UNLESS DIVERSITY)

Copyright Infringement under 17 U.S.C. Section 101 etseq.

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NdZresLJJudge Previously Assigned

If yes, was this case Vol. fj Invol. fj Dismissed. No fj Yes fj If yes, give date &Case No.

IS THIS AN INTERNATIONALARBITRATIONCASE7

(PLACE AN[x] INONEBOXONL Y)

No 0 Yes •

NATURE OF SUIT

CONTRACT PERSONAL INJURY

I ]"0 INSURANCE [ ] 310 AIRPLANE[ 1120 MARINE ( ] 315 AIRPLANE PRODUCT[ J 130 MILLER ACT LIABILITY

( ]1« NEGOTIABLE | ] 320 ASSAULT, LIBEL&INSTRUMENT SLANDER

I 1150 RECOVERY OF [ ] 330 FEDERALOVERPAYMENT 4 EMPLOYERS'

ENFORCEMENT LIABILITY

OF JUDGMENT [ ] 340 MARINE

[ 1151 MEDICARE ACT [ ] 345 MARINE PRODUCT( ] 152 RECOVERY OF LIABILITY

DEFAULTED | ] 350 MOTOR VEHICLESTUDENT LOANS [ ] 355 MOTOR VEHICLE(EXCL VETERANS) PRODUCT LIABILITY

I 1153 RECOVERY OF [ ] 360 OTHER PERSONALOVERPAYMENT INJURY

OF VETERAN'S 1 ] 362 PERSONAL INJURY -BENEFITS MED MALPRACTICE

11160 STOCKHOLDERS

SUITS

[J 190 OTHER

CONTRACT

[ 1195 CONTRACT

PRODUCT ACTIONS UNDER STATUTES

LIABILITY

[ ] 196 FRANCHISE CIVIL RIGHTS

[ ] 440 OTHER CIVIL RIGHTS

REAL PROPERTY(Non-Prisoner)

( ] 441 VOTING

I ] 210 LAND [ ] 442 EMPLOYMENTCONDEMNATION [ ] 443 HOUSING/

( ]220 FORECLOSURE ACCOMMODATIONS

[ ]230 RENT LEASE & [ ] 445 AMERICANS WITHEJECTMENT DISABILITIES -

I I 240 TORTS TO LAND EMPLOYMENT

I I 245 TORT PRODUCT [ ] 446 AMERICANS WITH

LIABILITY DISABILITIES -OTHER

I ]290 ALL OTHER

REAL PROPERTY

[ ] 448 EDUCATION

Check if demanded in complaint:

CHECK IF THIS IS ACLASS ACTIONUNDER F.R.C.P. 23•

DEMAND $ OTHER

Check YES only if demanded in complaintJURY DEMAND: DYES Qo.0

PERSONAL INJURY FORFEITURE/PENALTY[ ) 367 HEALTHCARE/PHARMACEUTICAL PERSONAL , , 625 DRUG RELATEDINJURY/PRODUCT LIABILITY SEI2URE 0F PROPERTY[ ] 365 PERSONALINJURY 21 USC 861

PRODUCT LIABILITY , . 690 OTHER( ]368 ASBESTOS PERSONAL ' '

INJURY PRODUCT

LIABILITY

PERSONAL PROPERTY

[ ] 370 OTHER FRAUD[ ] 371 TRUTH IN LENDING

[ ] 380 OTHER PERSONALPROPERTY DAMAGE

( ] 385 PROPERTY DAMAGEPRODUCT LIABILITY

PRISONER PETITIONS

[ ] 463 ALIEN DETAINEE[ ] 510 MOTIONS TO

VACATE SENTENCE

28 USC 2255

[ J 530 HABEASCORPUS[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS& OTHER

PRISONER CIVIL RIGHTS

[ ) 550 CIVILRIGHTS[ ] 555 PRISON CONDITION[ J 560 CIVIL DETAINEE

LABOR

[ ] 710 FAIR LABORSTANDARDS ACT

[ J 720 LABOR/MGMTRELATIONS

[ ] 740 RAILWAY LABORACT

[ ] 751 FAMILYMEDICALLEAVE ACT (FMLA)

[ ] 790 OTHER LABORLITIGATION

[ ] 791 EMPL RET INCSECURITY ACT

IMMIGRATION

( ) 462 NATURALIZATIONAPPLICATION

[ ) 465 OTHER IMMIGRATIONACTIONS

CONDITIONS OF CONFINEMENT

ACTIONS UNDER STATUTES

BANKRUPTCY OTHER STATUTES

[ 1 375 FALSE CLAIMS( ] 422 APPEAL [ J400STATE

28 USC 158 REAPPORTIONMENT

( ] 423 WITHDRAWAL [ ] 410 ANTITRUST28 USC 157 [ ] 430 BANKS 4 BANKING

( ] 450 COMMERCE[ ] 460 DEPORTATION

PROPERTY RIGHTS [ ] 470 RACKETEER INFLUENCED & CORRUPT

W 620 COPYRIGHTS ORGANIZATION ACT

[ ] 830 PATENT (RICO)[ ) 840 TRADEMARK [ ] 480 CONSUMER CREDIT

[ J 490 CABLE/SATELLITETV

SOCIAL SECURITY ( ] 850 SECURITIES/COMMODITIES/

[ 1861 HIA(1395ff) EXCHANGE

( ] 862 BLACKLUNG (923)[ ] 863 DIWC/DIWW (405(g))[ ] 864 SSID TITLE XVI[ ] 865 RSI (405(g))

FEDERAL TAX SUITS

[ ] 870 TAXES (U.S. Plaintiff orDefendant)

[ ) 871 IRS-THIRD PARTY26 USC 7609

] 890 OTHER STATUTORYACTIONS

] 891 AGRICULTURALACTS

] 893 ENVIRONMENTALMATTERS

] 695 FREEDOM OFINFORMATION ACT

] 896 ARBITRATION

] 899 ADMINISTRATIVEPROCEDURE ACT/REVIEW OR

APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITYOFSTATE STATUTES

DO YOU CLAJM THIS CASE IS RELATED TO A CIVILCASE NOW PENDING IN S.D.N.Y.?

JUDGE Engelmayer DOCKET NUMBER 12cv6065

NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).

(PLACEAN x INONEBOXONLYS ORIGIN

LH 1 Original • 2 Removed from D 3 Remanded • 4 Reinstated orProceeding StateCourt from Reopened

| | 3. all parties represented AppellateCourt

I | 5 Transferred from Q 6 Multidistrict(Specify District) Litigation

Q 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment

I | b. At least oneparty is pro se.

(PLACEAN x INONEBOXONLY) BAS|S 0F JURISDICTION

• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT \x\ 3 FEDERAL QUESTION Q4 DIVERSITY(U.S. NOT A PARTY)

IFDIVERSITY, INDICATECITIZENSHIP BELOW.

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)

CITIZEN OF THIS STATE

PTF DEF

I 11 [ ]1

CITIZENOF ANOTHER STATE [ ] 2 [ ] 2

CITIZEN OR SUBJECT OF A

FOREIGN COUNTRY

PTF DEF

[ ]3[]3

INCORPORATED or PRINCIPAL PLACE [ ] 4 [ ] 4OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

PTF DEF

INCORPORATEDand PRINCIPAL PLACE [ ] 5 [ ] 5OF BUSINESS IN ANOTHER STATE

FOREIGN NATION [ )6 [ ]6

DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN

RESIBENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS Qc] MANHATTAN(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTSCOMPLAINT.)

DATE 9/18/14 SIGNATURE OF ATTORNEY OF RECORD ADMITTED TO PRACTICE IN THIS DISTRICT

/^/"^""^ ^^—-^"Y [x] YES (DATE ADMITTED Mo. Sept. Yr. 1986 )RECEIPT # — Attorney Bar Code # [email protected]

Magistrate Judge is to be designated by the Clerk of the Court.

Magistrate Judge

Ruby J. Krajick, Clerk of Court by . Deputy Clerk, DATED.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

Clear Form Save

is so Designated.

Print

Richard S. Mandel, Esq.COWAN, LIEBOWITZ & LATMAN, P.C.1133 Avenue of the Americas

New York, New York 10036-6799(212) 790-9200

Attorneys for PlaintiffsCAPITOL RECORDS, LLC and UNIVERSAL-POLYGRAMINTERNATIONAL PUBLISHING, INC.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

— - — X

CAPITOL RECORDS, LLC and UNIVERSAL- : 14 civPOLYGRAM INTERNATIONAL PUBLISHING,INC., :

14 CV 771

COMPLAINTPlaintiffs,

-against-

MONSTER ENERGY COMPANY,

Defendant.x

Plaintiffs Capitol Records, LLC and Universal-Polygram International Publishing, Inc.

(collectively, "Plaintiffs"), by and through their attorneys, Cowan, Liebowitz & Latman, P.C, as

and for their Complaint, allege as follows:

THE PARTIES

1. Plaintiff Capitol Records, LLC ("Capitol") is a Delaware limited liability

company with its principal place of business in Los Angeles, California.

2. PlaintiffUniversal-Polygram International Publishing, Inc. ("Universal") is a

Delaware corporation with its principal place of business in Los Angeles, California.

3. Upon information and belief, DefendantMonsterEnergy Company("Defendant"

or "Monster") is a Delaware corporation with its principal place of business at 550 Monica

Circle, Suite 201, Corona, California 92880.

29503/015/1497183.2

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JURISDICTION AND VENUE

4. This civil action seeks injunctive relief and damages for copyright infringement

under the Copyright Act, 17 U.S.C. § 101 et seg,

5. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).

6. This Court has personal jurisdiction over Defendant because, on information and

belief, it transacted business in New York and committed tortious acts outside New York causing

injury in New York.

7. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and

1400(a).

FACTS

Plaintiffs' Copyrights

8. Plaintiff Capitol is a well-known record company engaged in the business of

producing, manufacturing, distributing, selling, licensing and facilitating the distribution and sale

of sound recordings.

9. Plaintiff Universal is a well-known music publishing company engaged in the

business of administering copyrights in and licensing the use of musical compositions.

10. Plaintiffs have invested and continue to invest significant money, time, effort and

creative talent to discover and develop recording artists and songwriters, and to create and

exploit sound recordings recorded by, and musical compositions written by, their respective

exclusive recording artist and songwriters. Plaintiffs, their recording artists and/or songwriters

and others in the music industry are compensated for their creative efforts and monetary

investments largely from the exploitation of such recordings and musical compositions.

11. Capitol is the co-owner of the copyright to various original sound recordings

-2-29503/015/1497183.2

featuring the performances of the famous hip hop artists Beastie Boys, including the following

works duly registered withthe United States Copyright Office under the registration numbers

indicated below(collectively, the "BeastieBoys Recordings"):

Recording

"So Watcha Want"

"Sabotage"

"Looking Down the Barrel of a Gun"

"Make Some Noise"

"Pass the Mic"

Registration No.

SR0000197458

SR0000213461

SRuOOO154345

SR0000676386

SR0000197458

12. Universal is the co-owner of the copyright to various original musical

compositionswritten by the members of Beastie Boys, including the following works duly

registered with the United States Copyright Office under the registration numbers indicated

below (collectively, the "Beastie Boys Compositions"):

Recording Registration No.

"So Watcha Want" PA0000640261

"Sabotage"

"Looking Down the Barrel of a Gun'

"Make Some Noise"

"Pass the Mic"

PA0000721110

PA0000618789

PA0001767284

PA0000640257

Defendant's Infringing Conduct

13. Defendant Monster is a manufacturer and distributor of energy drinks and

alternativebeverages, including MONSTER ENERGY brand energy drinks.

14. Upon information and belief, in or around 2012, without Plaintiffs' consent,

29503/015/1497183.2

Monster and/or entities acting at Monster's direction synchronized and recorded the Beastie

Boys Compositions and the Beastie Boy Recordings together with visual and other material to

create promotional videos for Monster's products, including a promotional video for Monster's

"Ruckus in the Rockies 2012" promotional event (the "Video"). The soundtrack of the Video is

comprised substantially of excerpts from the Beastie Boys Recordings and Beastie Boys

Compositions totaling more than three minutes in duration.

15. Upon information and belief, on or around May 9, 2012, Monster posted the

Video on a number of websites, including, without limitation, Monster's official website located

at www.monsterenergy.com and the YouTube website located at www.youtube.com, for use as

advertising and promotion for Monster and its products and events.

16. Monster's unauthorized creation and distribution of the Video constitutes

infringement of Plaintiffs' copyrights in the Beastie Boys Recordings and Beastie Boys

Compositions. Indeed, such acts by Defendant Monster have already been adjudicated to be

infringing and damages have been awarded and other determinations made by the jury

(collectively, the "Findings") in an action brought by the co-owners of the copyrights in the

Beastie Boys Recordings and Beastie Boys Compositions, Beastie Boys et al. v. Monster Energy

Company, 12 Civ. 6065 (PAE) (the "Beastie Boys Action"). The Findings in the Beastie Boys

Action are binding upon Monster and collaterally estop it from challenging the Findings in this

action.

17. Monster's infringing acts were willful, intentional and purposeful, in blatant

disregard of Plaintiffs' rights.

18. By virtue of Monster's infringing conduct, it has made profits and gains to which

it is not in law or equity entitled.

-4-29503/015/1497183.2

19. The infringements ofPlaintiffs' copyright rights in the Beastie Boys Recordings

and Beastie Boys Compositions have damaged Plaintiffs and caused them irreparable harm.

Plaintiffs have no adequate remedy at law for such infringements.

COUNT 1

(Copyright Infringement of "So Whatcha Want" Recording)

20. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-19 above

with the same force and effect as if set forth fully herein.

21. Monster's unauthorized reproduction of, preparation of a derivative work based

upon, distribution to the public of and public performance of Capitol's copyrighted sound

recording "So Whatcha Want" in the Video infringes Capitol's exclusive rights under the

Copyright Act, 17 U.S.C. § 106.

22. Each unauthorized reproduction, derivative work, distribution to the public and

public performance of Capitol's copyrighted sound recording constitutes an individual and

distinct act of infringement.

COUNT II

(Copyright Infringement of "So Whatcha Want" Composition)

23. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-19above



upon, distribution to the public of and publicperformance of Universal's copyrighted musical

composition "So Whatcha Want" in the Video infringes Universal's exclusive rights under the



public performance of Universal's copyrighted musical composition constitutes an individual

-5-29503/015/1497183.2

and distinct act of infringement.

COUNT III

(Copyright Infringement of "Sabotage" Recording)





recording "Sabotage" in the Video infringes Capitol's exclusive rights under the Copyright Act,

17 U.S.C. § 106.




COUNT IV

(Copyright Infringement of "Sabotage" Composition)




upon, distribution to the public of and public performance of Universal's copyrighted musical

composition "Sabotage" in the Video infringes Universal's exclusive rights under the Copyright

Act, 17 U.S.C. § 106.




-6-29503/015/1497183.2

COUNT V

(Copyright Infringement of "Looking Down the Barrel of a Gun" Recording)





recording "Looking Down the Barrel of a Gun" in the Video infringes Capitol's exclusive rights

under the Copyright Act, 17 U.S.C. § 106.




COUNT VI

(Copyright Infringement of "Looking Down the Barrel of a Gun" Composition")





composition "Looking Down the Barrel of a Gun" in the Video infringes Universal's exclusive

rights under the Copyright Act, 17 U.S.C. § 106.




COUNT VII

(Copyright Infringement of "Make Some Noise" Recording)


29503/015/1497183.2




recording "Make Some Noise" in the Video infringes Capitol's exclusive rights under the


40. Eachunauthorized reproduction, derivative work, distribution to the public and



COUNT VIII

(Copyright Infringement of "Make Some Noise" Composition)





composition"Make Some Noise" in the Video infringes Universal's exclusive rights under the





COUNT IX

(Copyright Infringement of "Pass the Mic" Recording)




-8-29503/015/1497183.2

upon, distribution to the public of and publicperformance of Capitol's copyrighted sound

recording "Pass the Mic" in the Video infringes Capitol's exclusive rights under the Copyright

Act, 17 U.S.C. § 106.

46. Eachunauthorized reproduction, derivative work, distribution to the public and



COUNT X

(Copyright Infringement of "Pass the Mic" Composition)





composition "Pass the Mic" in the Video infringes Universal's exclusive rights under the



public performance of Universal's copyrighted sound recording constitutes an individual and


WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their

favor and against Defendant as follows:

A. For a permanent injunction enjoining Monster and its agents, servants, employees,

officers, directors, attorneys, successors, assigns, licensees and all others in active concert or

participation with any of them from any further reproduction, distribution, performance or

exploitation of the Video, the Beastie Boys Recordings or the Beastie Boys Compositions.

-9-29503/015/1497183.2

B. For an award of statutory damages in the total amount of one million two hundred

thousand dollars ($1,200,000) representing $120,000 per infringement for each of the Beastie

Boy Recordings and each of the Beastie Boys Compositions or such other amount of statutory

damages that Plaintiffs may seek, or at Plaintiffs' election, actual damages suffered by Plaintiffs

and all profits earned by Defendants from each of the foregoing infringements as permitted under

the Copyright Act, in an amount to be determined at trial.

C. For prejudgment and post-judgment interest.

D. For an order awarding Plaintiffs' attorneys' fees, together with the costs and

disbursements of this action.

E. For such other and further relief as the Court may deem just and proper.

Dated: New York, New YorkSeptember 23, 2014

29503/015/1497183.2

COWAN, LIEBOWITZ & LATMAN, P.CV

ByRichard S. Mandel

1133 Avenue of the Americas

New York, New York 10036-6799(212)790-9200

Attorneys for PlaintiffCapitol Records, LLC and Universal-PolygramInternational Publishing, Inc.

•10-

General Information

Court United States District Court for the Southern District of NewYork; United States District Court for the Southern District ofNew York

Nature of Suit Property Rights - Copyrights[820]

Docket Number 1:14-cv-07718

Capitol Records, LLC et al v. Monster Energy Company, Docket No. 1:14-cv-07718 (S.D.N.Y. Sept 24, 2014), Court Docket

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