Download - Sony Music v. Extreme TRAXX, Cheer Music
JS 44C/SDNYREV. 1/2014
JUDGE PAUIH"14 ev
CIVIL COVER SHEET
TheJS-44civil cover sheetandthe information contained herein neither replace norsupplement thefiling andservice ofpleadings or other papers as required by law, except as provided by local rules of court. This form, approved KpiEJudicial Conference ofthe United States in September 1974, is required for useoftheClerk ofCourt for thepurp§fe £initiating the civildocket sheet.
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1 G2014PLAINTIFFS
Sony Music Entertainment
DEFENDANTS
Extreme TRAXX Productions, Cheer Music Store, Inc., Cheer Music Machine,LLC, Cheerleading Music, LLC, Thomas Locklayer, and Mark Bryan
ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS (IF KNOWN)Kim J. Landsman and Ana-Claudia RoderickGolenbock Eiseman Assor Bell & Peskoe LLP437 Madison Avenue, New York, NY 10022, Phone: (212) 907-7300CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
17 U.S.C. §§ 106, 501. This isan action for infringement ofcopyrights in .sound recordings
Has this ora similar case been previously filed in SDNY atany time? No [X] Yes • Judge Previously Assigned
If yes, was this case Vol. • Invol. • Dismissed. No • Yes • If yes, give date.
IS THIS AN INTERNATIONAL ARBITRATION CASE? No ^ YeS D
& Case No.
(PLACE AN[x]INONEBOXONLY)
TORTS
NATURE OF SUIT
ACTIONS UNDER STATUTES
CONTRACT PERSONAL INJURY PERSONAL INJURY FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
[ 1110[ ]120[ ]130[ ]140
INSURANCE [ ]310 AIRPLANE [ ] 362 PERSONAL INJURY - [ 1610 AGRICULTURE [ ] 422 APPEAL [ ]400 STATE
MARINE [ ]315 AIRPLANE PRODUCT MED MALPRACTICE [ ]620 OTHER FOOD & 28 USC 158 REAPPORTIONMENT
MILLER ACT LIABILITY [ 1365 PERSONAL INJURY DRUG [ ] 423 WITHDRAWAL [ 1410 ANTITRUST
NEGOTIABLE [ ]320 ASSAULT, LIBEL & PRODUCT LIABILITY [1625 DRUG RELATED 28 USC 157 [ ]430 BANKS & BANKING
INSTRUMENT SLANDER [ ] 368 ASBESTOS PERSONAI SEIZURE OF [ ]450 COMMERCE
|]150 RECOVERY OF [ ]330 FEDERAL INJURY PRODUCT PROPERTY [ ) 460 DEPORTATION
OVERPAYMENT & EMPLOYERS' LIABILITY 21 USC 881 PROPERTY RIGHTS [ J 470 RACKETEER INFLU
ENFORCEMENT LIABILITY [ ]630 LIQUOR LAWS ENCED & CORRUPT
OF JUDGMENT [ ]340 MARINE PERSONAL PROPERTY [ ]640 RR & TRUCK M820 COPYRIGHTS ORGANIZATION ACT
[ 1151[]152
MEDICARE ACT I I 345 MARINE PRODUCT [ J650 AIRLINE REGS [ ]830 PATENT (RICO)
RECOVERY OF LIABILITY [ ] 370 OTHER FRAUD [ 1660 OCCUPATIONAL [ ] 840 TRADEMARK [ ]480 CONSUMER CREDIT
DEFAULTED [ ]350 MOTOR VEHICLE [ ] 371 TRUTH IN LENDING SAFETY/HEALTH [ ]490 CABLE/SATELLITE TV
STUDENT LOANS [ ]355 MOTOR VEHICLE [ ] 380 OTHER PERSONAL [ ]690 OTHER [ 1810 SELECTIVE SERVICE
(EXCL VETERANS) PRODUCT LIABILITY PROPERTY DAMAGE SOCIAL SECURITY [ I 850 SECURITIES/
[ ] 153 RECOVERY OF [ ]360 OTHER PERSONAL [ ] 385 PROPERTY DAMAGE COMMODITIES/
OVERPAYMENT INJURY PRODUCT LIABILITY LABOR [ ] 861 HIA (1395ff) EXCHANGE
OF VETERAN'S [ ] 862 BLACKLUNG (923) ! 1875 CUSTOMER
BENEFITS [ ]710 FAIR LABOR [ J 863 DIWC/DIWW(405(g)) CHALLENGE
[ ]160 STOCKHOLDERS STANDARDS ACT [ ] 864 SSID TITLE XVI 12 USC 3410
SUITS [ I 720 LABOR/MGMT [ ] 865 RSI (405(g)) [ ]890 OTHER STATUTORY
[]190 OTHER PRISONER PETITIONS RELATIONS ACTIONS
CONTRACT [) 730 LABOR/MGMT [ ]891 AGRICULTURAL ACTS
[]195 CONTRACT [ ]510 MOTIONS TO REPORTING & FEDERAL TAX SUITS [ 1892 ECONOMIC
PRODUCT ACTIONS UNDER STATUTES VACATE SENTENCE DISCLOSURE ACT STABILIZATION ACT
LIABILITY 28 USC 2255 [ I 740 RAILWAY LABOR ACT [ ]870 TAXES (U.S. Plaintiff or [ ]893 ENVIRONMENTAL
[ ] 196 FRANCHISE CIVIL RIGHTS [ ]530 HABEASCORPUS [ I 790 OTHER LABOR Defendant) MATTERS
[ J535 DEATHPENALTY LITIGATION [ ] 871 IRS-THIRD PARTY [ 1894 ENERGY
[ 1441 VOTING [ I 540 MANDAMUS &OTHER [ 1791 EMPL RET INC 26 USC 7609 ALLOCATION ACT
[ ] 442[ I 443
EMPLOYMENT SECURITY ACT [ ]895 FREEDOM OF
REAL PROPERTY HOUSING/ INFORMATION ACT
ACCOMMODATIONS IMMIGRATION [ ]900 APPEAL OF FEE
[]210 LAND [ ]444 WELFARE PRISONER CIVIL RIGHTS DETERMINATION
CONDEMNATION [ ]445 AMERICANS WITH [1462 NATURALIZATION UNDER EQUAL
[ ]220[ 1230
FORECLOSURE DISABILITIES - [ ] 550 CIVILRIGHTS APPLICATION ACCESS TO JUSTICE
RENT LEASE & EMPLOYMENT [ J 555 PRISON CONDITION [ ]463 HABEAS CORPUS- [ )950 CONSTITUTIONALITY
EJECTMENT [ ]446 AMERICANS WITH ALIEN DETAINEE OF STATE STATUTES
[ 1240 TORTS TO LAND DISABILITIES -OTHER [ 1465 OTHER IMMIGRATION
[]245 TORT PRODUCT
LIABILITY
[ ]440 OTHER CIVIL RIGHTS
(Non-Prisoner)ACTIONS
[ ]290 ALL OTHER
REAL PROPERTY
Check if demanded in complaint:
•CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23
DEMAND $_ OTHER
Check YES only if demanded in complaintJURY DEMAND: S YES • NO
DO YOU CLAIM THIS CASE IS RELATED TO A CIVILCASE NOW PENDING INS.D.N.Y.?IF SO, STATE:
JUDGE DOCKET NUMBER.
NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).
(PLACE AN x INONEBOXONLY)
S 1 OriginalProceeding
ORIGIN
• 2 Removed from D3 Remanded D 4 Reinstated or • 5 Transferred from Q6 MultidistrictState Court from Reopened (Specify District) Litigation
["I a. all parties represented Appellate1—' Court
[J b. At leastoneparty Is pro se.
I I 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment
(PLACE AN x INONEBOXONLY)
• 1 U.S. PLAINTIFF • 2 U.S.DEFENDANTBASIS OF JURISDICTION
| 3 FEDERAL QUESTION Q4 DIVERSITY(U.S. NOT A PARTY)
IF DIVERSITY, INDICATECITIZENSHIP BELOW.
(28 USC 1332, 1441)
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiffand one box for Defendant)
CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
PTF DEF
[ ]3 [ ]3PTF DEF
INCORPORATED and. PRINCIPAL PLACE [ ] 5 [ ] 5OF BUSINESS IN ANOTHER STATE
PTF DEF
CITIZEN OF THIS STATE [ ] 1 [ ] 1
CITIZEN OF ANOTHER STATE [ ] 2 [ ] 2 INCORPORATED or PRINCIPAL PLACE [ ]4 [ ]4OF BUSINESS IN THIS STATE
FOREIGN NATION []6 []6
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
550 Madison Avenue, New York, NY 10022.New York County, NY
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
Extreme TRAXX Productions and Thomas Locklayer: 1124 Renoir Way, Williamstown, NJ 08094.Gloucester County, NJ.Cheer Music Store Inc., Cheer Music Machine, LLC, Cheerleading Music Service, LLC, and Mark Bryan:6550 Devonshire Heights Road, Harrisburg, PA 17111. Dauphin County, PA.
DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THE
RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Checkone: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS [X] MANHATTAN(DO NOT check either box ifthis a PRISONER PETITION/PRISONER CIVIL RIGHTS COMPLAINT.)
DATE 2/10/2014 SIGNATURE OF ATTORNEY OF RECORD
RECEIPT #JL <5W,e>*r -
Magistrate Judge is to be designated by the Clerk of the Court.
Magistrate Judge
Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATED1
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
ADMITTED TO PRACTICE IN THIS DISTRICT
[ 1 NON YES(DATE ADMITTED Mo. 02 Yr. 1981 )Attorney Bar Code # 1705045
is s% Designated.
Kim J. Landsman
Ana-Claudia Roderick
GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP437 Madison Avenue
New York, New York 10022-7020(212) 907-7300E-mail: [email protected]
Attorneysfor PlaintiffSonyMusic Entertainment
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
/M
14 Civ.
/f!?F
SONY MUSIC ENTERTAINMENT,
Plaintiff,
- against -
EXTREME TRAXX PRODUCTIONS,
CHEER MUSIC STORE INC., CHEER MUSICMACHINE, LLC, CHEERLEADING MUSIC,LLC, THOMAS LOCKLAYER, and MARKBRYAN,
Defendants.
COMPLAINT
ECF Case
Jury Trial Demanded
JUDGEMBH
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Plaintiff Sony Music Entertainment ("Plaintiff' or "Sony Music"), through its
undersigned counsel, for its complaint against defendants Extreme Traxx Productions, Cheer
Music Store Inc., Cheer Music Machine, LLC, Cheerleading Music Service, LLC, Thomas
Locklayer, and MarkBryan(collectively, "Defendants"), alleges as follows:
NATURE OF THE ACTION
1. This is an action for the blatant, willful, and ongoing infringement of Sony
Music's copyrights in and to certain sound recordings. Defendants sell, distribute, and
commercially exploit customized "mixes" of popular sound recordings for use in cheerleading
1
competitions that include Sony Music's copyrighted sound recordings without any attempt to
obtain the requisite permission.
PARTIES
2. PlaintiffSony Music is a partnership duly organized and existing under the
laws of the State of Delaware, with its principal place of business at 550 Madison Avenue,
New York, New York 10022. Sony Music markets, sells, distributes, and otherwise exploits
sound recordings embodying musical and/or vocal performances by recording artists, including
in the form of phonograph records, tapes, compact discs ("CDs"), videos, digital video discs
("DVDs"), and downloads from the Internet.
3. Upon information and belief, defendant Extreme TRAXX Productions
("Extreme TRAXX") is a business entity with its principal place of business in Williamstown,
New Jersey. Extreme TRAXX operates and conducts business through its interactive website
http://www.extremetraxx.com, and is engaged in streaming, offering for sale, distributing, and
selling samples and remixes of popular songs for use by cheerleading groups, teams, and
organizations.
4. Upon information and belief, defendant Thomas Locklayer ("Locklayer")
is an individual residing in Williamstown, New Jersey, and is the principal and owner of
Extreme TRAXX. Upon information and belief, Locklayer personally instigated, directed, and
controlled the unlawful activity alleged herein.
5. Upon information and belief, defendant Cheer Music Store Inc. ("Cheer
Music Store") is a corporation with its principal place of business in Harrisburg, Pennsylvania,
and is affiliated with defendants Cheer Music Machine, LLC and Cheerleading Music Service,
LLC (collectively, the "Cheer Music Defendants"). Cheer Music Store has operated and
conducted business through its interactive website, http://www.cheermusicstore.com, and has
engaged in streaming, offering for sale, distributing, and selling samples and remixes of popular
songs for use by cheerleading groups, teams, and organizations.
6. Upon information and belief, defendant Cheer Music Machine, LLC
("Cheer Music Machine") is a Delaware limited liability company with its principal place of
business in Harrisburg, Pennsylvania, and is affiliated with the Cheer Music Defendants. Cheer
Music Machine has operated and conducted business through its interactive website
http://www.cheermusicmachine.com, and has engaged in streaming, offering for sale,
distributing, and selling samples and remixes of popular songs for use by cheerleading groups,
teams, and organizations.
7. Upon information and belief, defendant Cheerleading Music Service, LLC
("Cheerleading Music") is a Delaware limited liability company with its principal place of
business in Harrisburg, Pennsylvania, and is affiliated with the Cheer Music Defendants.
Cheerleading Music has operated and conducted business through its interactive website
http://www.cheerleadingmusic.com, and has engaged in streaming, offering for sale, distributing,
and selling samples and remixes of popular songs for use by cheerleading groups, teams, and
organizations.
8. Upon information and belief, defendant Mark Bryan ("Bryan") is an
individual residing in Harrisburg, Pennsylvania, who is the owner and principal of the Cheer
Music Defendants. Upon information and belief, Bryan personally instigated, directed, and
controlled the unlawful activity alleged herein.
JURISDICTION AND VENUE
9. This Court has subject matter jurisdiction over this action for copyright
infringement pursuant to 28 U.S.C. §§ 1331 (federal question) and 1338 (action arising under an
Act of Congress relating to copyright).
10. Upon information and belief, each of the Defendants engages in
substantial and continuous solicitation of business in New York. New York is home to a vibrant
community of cheerleading organizations and is a location for numerous cheerleading
competitions. For example, the United States Cheer and Dance Directory lists sixty-one cheer,
dance and gymnastics teams, six collegiate teams, and four professional teams located in New
York State. See http://www.uscdd.net/nyteams.php (last visited February 5, 2014). The same
website reports that, as of February 5, 2014, there are expected to be approximately 120
cheerleading competitions held in New York State between January 2014 and August 2014. As
such, Defendants direct their business towards New York in order to profit from the large
cheerleading market in this Stateand its appetite for cheerleading-specific music products.
11. Upon information and belief, Defendants sell their products primarily
through their interactive websites. These sites go beyond merely displaying information, and
allow New York customers to communicate with and make purchases from Defendants through
the Internet. For example, Extreme TRAXX's website allows customers to email Extreme
TRAXX, book appointments with its employees or representatives, and purchase or make
"deposits" for Extreme TRAXX's products. The Cheer Music Defendants' websites allow
customers to email representatives to discuss the customization of their music request and order
or purchase products and services online.
12. Upon information and belief, a substantial percentage of Defendants'
revenue is attributable to its sales to New York residents. As a large market for cheerleading
music, New York customers are likely to be the source of a significant number of Defendants'
yearly transactions.
13. As a result of Defendants' activities, they are subject to personal
jurisdiction pursuant to CPLR §301, and the exercise of the Court's general jurisdiction
comports with constitutional due process.
14. Upon information and belief, Defendants have transacted business in the
State of New York by selling music samples, remixes, CDs, and/or DVDs throughtheir websites
to various individuals or cheerleading groups located in New York. New York cheerleading
organizations and residentsprovide a substantial market for Defendants' infringing businesses.
15. Sony Music's claim for copyright infringement arises from these
transactions of business, inasmuch as the goods and services sold by Defendants to customers in
New York infringe on Sony Music's copyrights.
16. Accordingly, Defendants are subject to personal jurisdiction in the State of
New York pursuant to CPLR § 302(a)(1), and the exercise of such jurisdiction complies with
constitutional due process.
17. Defendants have committed tortious acts outside of New York by creating
and maintaining websites based in New Jersey and Pennsylvania that play and/or sell music
samples, remixes, CDs, and/or DVDs that infringe on Sony Music's copyrights.
18. Sony Music's infringement claim arises from Defendants' acts, which
have caused injury to Sony Music in New York.
19. Defendants expected or should reasonably have expected their tortious
conduct to have consequences in New York, as it is well known that Sony Music's headquarters
are located in New York City, New York hosts a substantial number of cheerleading
competitions each year, and New York is home to a significant number of cheerleading teams,
groups, and organizations.
20. Upon information and belief, Defendants have derived substantial revenue
from interstate commerce through the use of their interactive websites by selling their products in
New York and numerous other states.
21. As a result, Defendants are subject to personal jurisdiction in the State of
New York pursuant to CPLR § 302(a)(3)(ii), and the exercise of such jurisdiction complies with
constitutional due process.
22. Venue is appropriate in this judicial district pursuant to 28 U.S.C.
§ 1400(a) and 28 U.S.C. § 1391(b). Defendants are subject to the court's personal jurisdiction
with respect to this litigation and therefore may be found in this judicial district. In addition,
Sony Music has its principal place of business in the Southern District of New York, a
substantial part of the events and omissions giving rise to Sony Music's injuries have occurred in
New York, and a substantial part of the property at issue in this action, Sony Music's copyrights,
are located in this district.
FACTUAL ALLEGATIONS
A. Sony Music's Rights in the Sound Recordings at Issue
23. Sony Music is one of the largest and most respected record companies in
the music business. Its roster of artists includes a broad array of popular musicians and their
songs, including such international superstars as Adele, Beyonce, Britney Spears, Miley Cyrus,
One Direction, P!nk, and Bruce Springsteen. The company boasts a vast catalog that comprises
some of the most important recordings in history. It is home to premier record labels
representing music from every genre.
24. Sony Music owns or is the exclusive licensee of rights to the sound
recordings of its artists. Sony Music has invested and continues to invest significant money,
time, effort, and creative talent to create, promote, sell, and license its soundrecordings.
25. Sony Music sells, distributes, and/or licenses its sound recordings in the
form of CDs, DVDs, and digital files throughout the United States and in New York.
B. Defendants' Unlawful Copying and Distributionof Sony Music's Sound Recordings
26. Each Defendant has copied, distributed, and sold sound recordings owned
and/or controlledby Sony Music without Sony Music's authorization.
1. Extreme TRAXX and Locklayer
27. Extreme TRAXX and Locklayer are in the business of advertising,
offering for sale and distribution, distributing, and selling customized mixes and/or samples of
sound recordings to individuals or cheerleading groups for use in cheerleading competitions,
exhibitions, and/or training. Extreme TRAXX's website proclaims that Extreme TRAXX is
"'THE' house hold[sic] name synonymous with coaches, cheerleaders and choreographers alike
when they speak of 'The Best Custom Music' in the industry."
28. Extreme TRAXX and Locklayer have sold and distributed their custom
"mixes" or "packages" of sound recordings through, at the very least, their website. These
products (the "Extreme TRAXX Products") have been pricedbetween $850.00 (Traditional High
School - 1 minute and 30 seconds) and $1,500.00 (Traditional Allstars) per package.
29. Although Sony Music does not know the complete extent of Extreme
TRAXX's and Locklayer's unauthorized use of its sound recordings, a review of their website
has revealed that they have offered for sale and/or distribution sound recordings by Sony Music
artists such as Christina Aguilera, Beyonce, Chris Brown, Kelly Clarkson, Karmin, P!nk, and
The Script, among others.
30. Sound recordings copied and sold by Extreme TRAXX Products include,
but are not limited to "Army of Me" (Christina Aguilera), "Look at Me Now" (Chris Brown),
"Emotions" (Mariah Carey), "Catch My Breath" (Kelly Clarkson), "Bug-A-Boo" (Destiny's
Child), "To Love You More" (Celine Dion), "I Believe" (Fantasia), "Hello" (Karmin), "Runnin"
(Adam Lambert), "Keep Holding On" (Avril Lavigne), "Swagger Jagger" (Cher Lloyd), "Dance
Again" (Jennifer Lopez), "Blow Me (One Last Kiss)" (P!nk), and "Hall of Fame" (The Script).
31. The copyrights to all of the sound recordings specified in paragraph 30
above are registered in the Copyright Office of the United States, and are owned by, controlled
by, and/or exclusively licensed to Sony Music.
32. Upon information and belief, Extreme TRAXX and Locklayer provided
the Extreme TRAXX Products to customers in a digital and/or physical format that can be
readily distributed to additional users - without Sony Music's authorization - by sharing the
Extreme TRAXX Products digitally or burning them to a CD.
33. Upon information and belief, Extreme TRAXX and Locklayer have also
allowed their website visitors to listen to certain Extreme TRAXX Products prior to making a
purchase (i.e. they offer on-demand streaming). Upon information and belief, Extreme TRAXX
and Locklayer stream additional Extreme TRAXX Products through their Soundcloud page
(https://www.soundcloud.com/extremetraxxproductions).
34. Extreme TRAXX and Locklayer have no license or other authorization
from Sony Music to copy, sell, or distribute its sound recordings, and they have not compensated
Sony Music for their unauthorized uses.
2. The Cheer Music Defendants and Bryan
35. Like Extreme TRAXX and Locklayer, the Cheer Music Defendants and
Bryan have used their websites to advertise, offer for sale and distribution, distribute, and sell
premade and customized mixes and/or samples of sound recordings (the "Cheer Music Track
Packs") to individuals or cheerleading groups for use in cheerleading competitions, exhibitions,
and/or training.
36. Although the Cheer Music Defendants' websites no longer provide pricing
information for premade and customized Cheer Music Track Packs, until approximately
November 2013, the Cheer Music Defendants and Bryan charged customers between $75 (for 30
seconds, and up to "4 library songs") and $249 (for two minutes and 30 seconds, and "up to 20
library songs") for customized mixes.
37. Although Sony Music does not know the complete extent of the Cheer
Music Defendants' and Bryan's unauthorized use of its sound recordings, a review of their
websites has shown that they have offered for sale and/or distribution at least forty-seven sound
recordings by P!nk and over twenty sound recordings by Adele. These sound recordings include,
but are not limited to, "Bad Influence" (P!nk), "Blow Me (One Last Kiss)" (P!nk), "Cuz I Can"
(P!nk), "Rolling in the Deep" (Adele), "Rumor Has It" (Adele), and "Set Fire to the Rain"
(Adele).
38. The copyrights to all of the sound recordings specified in paragraph 37
above are registered in the Copyright Office of the United States, and are owned by, controlled
by, and/or exclusively licensed to Sony Music.
9
39. Upon information and belief, the Cheer Music Defendants and Bryan
provided the premade and customized Cheer Music Track Packs to customers in a digital format
that can be readily distributed to additional users by sharing the Cheer Music Track Packs
digitally or burning them to a CD.
40. The Cheer Music Defendants and Bryan also offered their website users
the opportunity to listen to premade Cheer Music Track Packs before making a purchase on an
on-demand, streaming basis. These Cheer Music Track Packs incorporated unauthorized uses of
Sony Music sound recordings.
41. The Cheer Music Defendants and Bryan also gave customers the option to
"design your routine" prior to purchase by using the "Cheer Music Machine" tool at
https://www.cheermusicmachine.com. This webpage allowed visitors to listen to and select
sound recordings for inclusion in a customized Cheer Music Track Pack, and has included copies
of recordings by Sony Music artists such as Adele, Alicia Keys, Britney Spears, Ke$ha, One
Direction, and P!nk.
42. The Cheer Music Defendants and Bryan have no license or other
authorization from Sony Music to copy, sell, or distribute its sound recordings, and they have not
compensated Sony Music for their unauthorized uses.
C. Defendants' Disregard of Sony Music's Cease and Desist Letters
43. Sony Music's legal counsel sent a letter dated April 4, 2013, by certified
mail and e-mail, to Bryan as principal of the Cheer Music Defendants. Sony Music's letter
notified the Cheer Music Defendants and Bryan that their custom mixes infringe Sony Music's
copyrights, demanded that the infringing activity stop, and insisted that the Cheer Music
Defendants and Bryan compensate Sony Music for their violation of its rights.
10
44. Bryan and the Cheer Music Defendants did not respond to the letter, but at
some point thereafter, Bryan and the Cheer Music Defendants made changes to their websites to
make certain content inaccessible without a password, which precludes any ability of Sony
Music to determine current content.
45. In or about October 2013, Sony Music's outside counsel contacted Bryan
and the Cheer Music Defendants, by phone and by email, and reiterated Sony Music's demands
that they halt their infringement and compensate Sony Music for their use of its copyrighted
sound recordings. Some initial conversations with Bryan and a lawyer who was considering
representing him did not ultimately lead to an agreement or compliance with Sony Music's
demands.
46. Sony Music's legal counsel sent a letter dated April 12, 2013, by certified
mail and by e-mail, to Locklayer as the principal of Extreme TRAXX. Sony Music's letter to
Locklayer and Extreme TRAXX similarly notified them that their products infringe Sony
Music's copyrights, demanded Locklayer and Extreme TRAXX cease their activities, and sought
payment for their infringing use of Sony Music's sound recordings. Locklayer and Extreme
TRAXX did not respond to the letter.
47. Despite being explicitly notified of their infringement of Sony Music's
rights, Defendants have not complied with the demand that they cease their infringement.
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Claim for Relief for Copyright Infringement
48. Plaintiff Sony Music hereby incorporates by reference the facts and
allegations set forth in paragraphs 1 through 47 above, as if fully set forth herein.
49. Defendants have infringed Sony Music's copyrights by copying, selling,
and/or distributing Sony Music's sound recordings in violation of 17 U.S.C. §§ 106 and 501 and,
to the extent that any sound recordings at issue were fixed before February 15, 1972, the
common law of various states including New York.
50. Defendants' infringement of Sony Music's rights in and to its sound
recordings includes but is not limited to the representative list of sound recordings described
above.
51. Defendants' acts of infringement have been deliberate and willful.
52. Defendants have unlawfully profited from the infringement of Sony
Music' s copyrights.
53. As a direct and proximate result of Defendants' violation of Sony Music's
copyrights, Sony Music has suffered actual damages to an extent not yet known and to be
determined by the trier of fact.
54. Defendants' conduct is causing and, unless enjoined by this Court, will
continue to cause Sony Music great and irreparable injury that cannot be fully compensated or
measured in money damages. Sony Music has no adequate remedy at law.
WHEREFORE, Sony Music respectfully requests that this Court enter judgment
against Defendants as follows:
A. Pursuant to 17 U.S.C. § 502 and Rule 65 of the Federal Rules of Civil Procedure,
preliminarily and permanently enjoining Defendants and their officers, agents, servants,
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employees, successors, licensees, assigns, and attorneys and any other persons who are in active
concert or participation with them from reproducing, copying, distributing, or selling without
Sony Music's authorization sound recordings for which Sony Music owns or controls the
exclusive copyrights.
B. Pursuant to 17 U.S.C. § 503, ordering that Defendants deliver to the Court for
impoundment and ultimate destruction all copies or phonorecords or visual recordings (in
physical and digital formats) made in violation of Sony Music's exclusive rights and all masters,
tapes, or other means by which such copies or phonorecords or visual recordings may be
reproduced.
C. Pursuant to 17 U.S.C. § 504, awarding Sony Music its actual damages suffered as
a result of Defendants' infringement of its copyrights, and any profits of Defendants attributable
to the infringement and not taken into account in computing Sony Music's actual damages, or in
the alternative, statutory damages of up to $150,000 per infringement for willful infringement;
D. Pursuant to 17 U.S.C. § 505, awarding Sony Music its full costs, including a
reasonable attorney's fee;
E. Awarding Sony Music prejudgment interest according to law; and
F. Awarding Sony Music such other and further relief as may be just and equitable
under the circumstances.
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JURY TRIAL DEMAND
Plaintiff demands trial by jury of all issues so triable.
Dated: February 10, 2014
1865458
Respectfully submitted,
Kim J.lL*andsmanAna-Claudia Roderick
GOLENBOCK EISEMAN ASSOR
BELL & PESKOE LLP
437 Madison Avenue
New York, New York 10022-7020(212) 907-7300E-mail: [email protected]
Attorneysfor PlaintiffSony Music Entertainment
14
