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1 4. Sony Music is informed and believes, and upon that basis alleges, that
2 defendant Applebees Services, Inc. (Applebees Services) is a Kansas corporation
3 with its principal place of business in Glendale, California.
4 5. Sony Music is presently unaware of the true names and/or the
5 involvement of the defendants sued herein by the fictitious designations does 1-10,
6 and for that reason sues them by those designations. Sony Music will seek leave of
7 Court to amend this pleading to identify those defendants when their true names and
8 involvement in the infringements hereinafter described are known.
9 FACTS COMMON TO ALL CLAIMS FOR RELIEF
10 6. Sony Music is a record company and is the owner or exclusive United
11 States licensee of sound recordings containing the performances of some of the most
12 popular and successful recording artists of all time. Sony Music has invested and
13 continues to invest significant money, time, effort and creative talent to create,
14 promote, sell and license its sound recordings.
15 7. Sony Music is, and has been at all relevant times, the exclusive licensee
16 of the rights, including copyright rights, in the United States and elsewhere, to the
17 sound recording titled Rock and Roll Aint Noise Pollution (Rock and Roll) by the
18 musical group AC/DC. The United States Register of Copyrights has issued to Sony
19 Musics licensor, Leidseplein Presse, B.V., Registration Certificate SR 019-392,
20 dated August 4, 1980, for the sound recording copyright in, inter alia, the sound
21 recording Rock and Roll.
22 8. Sony Music owns, and has owned at all relevant times, the copyright in
23 the recording titled Gonna Make You Sweat (Everybody Dance Now) (Everybody
24 Dance Now) by the musical group C+C Music Factory. The United States Register
25 of Copyright has issued to Sony Music Registration Certificate SR 782-730, dated
26 March 3, 2017, for the sound recording copyright in Everybody Dance Now.
27 9. Due to their bulk, copies of the sound recordings Rock and Roll and
28 Everybody Dance Now (the Recordings) are not attached to this Complaint.
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1 Services behalf; Music Dealers and Barkley represented that they were acting on
2 behalf of Applebees Services; and Music Dealers fees for its services were paid by
3 Applebees Services, directly or through Barkley, not by Sony Music.
4 21. In short, Applebees Services excuse for not paying Sony Music for
5 the Recordings used in the commercials for Applebees Restaurants is baseless,
6 contrived and in bad faith.
7 FIRST CLAIM FOR RELIEF
8 (For Breach of Contract The Rock and Roll License)
9 (Against Defendant Applebees Services)
10 22. Sony Music refers to and re-alleges each and every allegation contained
11 in paragraphs 1 through 21, both inclusive, above, as if set forth herein.
12 23. Sony Music has performed any and all obligations to be performed by
13 Sony Music, and satisfied any and all conditions to be satisfied by Sony Music,
14 under the Rock and Roll License, or such performance and satisfaction have been
15 excused by reason of Applebees Services breaches and repudiation.
16 24. Applebees Services materially breached and repudiated the Rock and
17 Roll License as alleged above, including by failing to pay Sony Music the license fee
18 of the greater of $250,000 and the amount paid to music publishers for the right to
19 use the musical composition Rock and Roll.
20 25. As a direct and proximate result of the foregoing breaches of contract,
21 Sony Music has been damaged in the amount of at least $250,000, according to
22 proof.
23 SECOND CLAIM FOR RELIEF
24 (For Breach of Contract Everybody Dance Now License)
25 (Against Defendant Applebees Services)
26 26. Sony Music refers to and re-alleges each and every allegation contained
27 in paragraphs 1 through 21, both inclusive, above, as if set forth herein.
28 ///
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1 27. Sony Music has performed any and all obligations to be performed by
2 Sony Music, and satisfied any and all conditions to be satisfied by Sony Music,
3 under the Everybody Dance Now License, or such performance and satisfaction have
4 been excused by reason of Applebees Services breaches and repudiation.
5 28. Applebees Services materially breached and repudiated the Everybody
6 Dance Now License as alleged above and including by failing to pay Sony Music the
7 license fee of the greater of $50,000 and the amount paid to music publishers for the
8 right to use the musical composition Everybody Dance Now.
9 29. As a direct and proximate result of the foregoing breaches of contract,
10 Sony Music has been damaged in the amount of at least $50,000, according to proof.
11 THIRD CLAIM FOR RELIEF
12 (For Direct, Contributory and Vicarious
13 Copyright Infringement Rock and Roll)
14 (Against All Defendants)
15 30. Sony Music refers to and re-alleges each and every allegation contained
16 in paragraphs 1 through 21, both inclusive, above, as if set forth herein.
17 If there is a determination that a non-exclusive license was not granted for the use of
18 the sound recording Rock and Roll, or if there was a non-exclusive license but
19 defendants exploited Rock and Roll after Sony Music terminated the license or
20 exploited Rock and Roll beyond the rights licensed, or all of the foregoing, then
21 defendants have infringed Sony Musics copyright in the sound recording Rock and
22 Roll:
23 (a) by, inter alia reproducing Rock and Roll in copies, by
24 preparing derivative works based upon or incorporating Rock and Roll,
25 by distributing copies of Rock and Roll to the public and/or by publicly
26 performing Rock and Roll;
27 (b) by causing, inducing or purporting to authorize all or some
28 of the foregoing infringements; and/or
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