(CONVERSION)   (UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE § 17200 ET SEQ.)   (UNJUST ENRICHMENT)   (VIOLATION OF CAL. CIV. CODE § 980(A)(2),   COMMON LAW MISAPPROPRIATION, COMMON-LAW UNFAIR COMPETITION)   (VIOLATION OF RIGHTS OF PUBLICITY UNDER CAL. CIV. CODE §§ 3344 AND 3344.1)   (VIOLATION OF RIGHTS OF PUBLICITY UNDER CALIFORNIA COMMON LAW)   1.  State Law Protection for Pre-1972 Recordings ............................................... 5   17.  In the 1950s and 1960s, Arthur Sheridan owned and operated several recording  companies specializing in recording and selling doo-wop, jazz, and rhythm and blues music. These  music labels produced recordings by some of the most influential musicians of the era, including the  Flamingos (inducted to the Rock and Roll Hall of Fame in 2001), Little Walter (inducted to the Blues  Hall of Fame in 1986 and the Rock and Roll Hall of Fame in 2008), and the Moonglows (inducted to  the Vocal Group Hall of Fame in 1999 and the Rock and Roll Hall of Fame in 2000).   18.  Arthur Sheridan owns many pre-1972 master recordings, including but not limited to  the following fixtures of jazz, blues, and doo-wop music: “Slow Down Woman,” “The Mojo,” “I  Want my Baby,” and “How Can I Leave” by J.B. Lenoir; “That’s my Desire” and “You Ain’t  Ready” by The Flamingos; “Evening Sun” by Johnny Shines; “Love is a Pain,” “No Need of Your  Crying,” “I Had a Feeling,” and “Meet Me Baby” by Rudy Greene; “Nervous Wreck” and “No More  Love” by Willie Nix; “Just a Lonely Christmas,” “Whistle My Love,” “Baby Please,” and “Hey  Santa Claus” by The Moonglows; “She Is Going to Ruin Me” and “I Can’t Stand Being Away From  You” by T-Bone Walker; “I Just Keep Loving Her” by Little Walter; “Merry Lee,” “Down Home,”  “Sweet and Lovely,” and “The Talk of the Town” by Howard McGhee; and “High and Lonesome”  and “Roll and Rhumba” by Jimmy Reed.    19.  Barbara Sheridan owns the pre-1972 master sound recording of “Golden Teardrops”  by The Flamingos, critically acclaimed when it was recorded and still regarded as a classic.   2.  Sirius XM ........................................................................................................ 6   20.  Arthur and Barbara Sheridan own the intellectual property and contract rights  associated with the recordings. These rights include, without limitation, the right to control the use  and distribution of the recording, the right to use the publicity rights, including the well-known  voices, names, images, and likenesses of the associated recording artists such as the Flamingos and  Little Walter, to promote the recordings, and the right to receive royalty payments from the  exploitation of the master recordings described above. The publicity rights of the recording artists  behind the recordings are valuable and highly sought-after by commercial entities.  Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page6 of 23 3.  Pandora Internet Radio .................................................................................... 8  V.  57.  Plaintiffs Arthur and Barbara Sheridan bring this action under Federal Rule of Civil  Procedure 23(b)(2) and (b)(3) on their own behalf and on behalf of the following class of plaintiffs  (the “Misappropriation Class”):  All owners of reproduction and public performance rights in Pre-1972  Recordings that have been publicly performed, copied, or otherwise  exploited by Defendants, without a license or other authorization, in  the marketing, sale, and provision of satellite and internet radio  services.   58.  The persons in the Misappropriation Class are so numerous that individual joinder of  all members is impracticable under the circumstances of this case. Although the precise number of  such persons is unknown, the exact size of the Misappropriation Class is easily ascertainable, as each  class member can by identified by using Defendants’ records. Plaintiffs are informed and believe that  there are many thousands of Misappropriation Class members.    59.  There are common questions of law and fact specific to the Misappropriation Class  that predominate over any questions affecting individual members, including:  (a)  Whether Defendants copy, publicly perform, or otherwise exploit Pre-1972  Recordings in their satellite and internet radio services without authorization or  permission;  (b)  Whether such uses are unlawful;  (c)  Whether Defendants’ conduct violates California Civil Code § 980(a)(2);  (d)  Whether Defendants’ conduct constitutes misappropriation;  (e)  Whether Defendants’ conduct constitutes unfair competition;  (f)  Whether Defendants’ conduct constitutes conversion;  (g)  Whether class members have been damaged by Defendants’ conduct, and the amount  of such damages;  (h)  Whether treble damages are appropriate and the amount of such damages;  (i)  Whether punitive damages are appropriate and the amount of such damages;  (j)  Whether statutory damages are appropriate and the amount of such damages;   Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page12 of 23 70.  Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully  set forth herein.   71.  Plaintiffs, the Misappropriation Class, and/or their predecessors-in-interest spent  substantial time, skill, effort, and money to create the Pre-1972 Recordings, and Plaintiffs and the  Misappropriation Class have property interests in them as recognized by Cal. Civ. Code § 980(a)(2)  and California common law.   72.  By duplicating the Pre-1972 Recordings without authorization from Plaintiffs and  Class Members, and publicly performing those Recordings to their users for their own gain,  Defendants engaged in the misappropriation of the Plaintiffs’ and Class Members’ valuable work  product and/or intellectual property rights, whereby Defendants profited to the disadvantage of the  Plaintiffs and Class Members, who have been and continue to be injured by Defendants’ conduct.   73.  As a result of Defendants’ misappropriation of the Pre-1972 Recordings, Plaintiffs  and Class Members are entitled to an order enjoining Defendants from continuing to use those  recordings without authorization and compensation, and to an order imposing a constructive trust on  Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page15 of 23 75.  Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully  set forth herein.   76.  Plaintiffs and the Misappropriation Class are the owners of the Pre-1972 Recordings,  and have an intangible property interest in them as recognized by California Civil Code § 980(a)(2).   77.  By their conduct described above, Defendants wrongfully converted those rights and  interests for their own use and profit.   78.  By their conduct described above, Defendants engaged in a wrongful, unpermitted  exercise of control over the property of Plaintiffs and Class Members. As a result, Plaintiffs and  Class Members lost control over their rightful property and did not receive compensation for the use  of their valuable sound recordings, and were thereby damaged.   79.  As a result of Defendants’ conversion of the Pre-1972 Recordings, Plaintiffs and  Class Members are entitled to an order enjoining Defendants from continuing to use those recordings  without authorization and compensation, and to an order imposing a constructive trust on any money  Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page16 of 23 81.  Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully  set forth herein.   82.  Defendants have knowingly and intentionally used and continue to use the publicity  rights of Plaintiffs and the Publicity Rights Class, including names, voices, and likenesses, for the  purposes of advertising Defendants’ satellite and internet radio services; providing those radio  services; selling subscriptions and advertisements in connection with those radio services; and/or  advertising and selling other products and services.   83.  Defendants are high-profile, large-scale media companies, intimately familiar with the  mechanics of the music industry and the law governing rights of publicity. Defendants’ actions, as  described herein, were committed maliciously, intentionally, fraudulently and with a willful and  conscious disregard of the rights of Plaintiffs and the Publicity Rights Class, making an award of  punitive damages appropriate in order to punish and deter Defendants from continuing to engage in  the conduct alleged herein.   84.  As a result of Defendants’ violation of their publicity rights, Plaintiffs and the  Publicity Rights Class have been injured.  Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page17 of 23 85.  Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully  set forth herein.   86.  Defendants have utilized and continue to utilize names, voices, and/or likenesses of  recording artists associated with the Pre-1972 Recordings in Defendants’ satellite and internet radio  services.   87.  Defendants have intentionally used and continue to use names, voices, and likenesses  of recording artists associated with the Pre-1972 Recordings with full and complete knowledge that  their use of such rights was unauthorized and without prior license or consent.   88.  Defendants have used and continue to use names, voices, and likenesses of recording  artists associated with the Pre-1972 Recordings for their own commercial advantage as a means of  generating interest in and profits for Defendants’ satellite and internet radio services.   89.  Plaintiffs hold licenses to promote the Pre-1972 Recordings using the names, voices,  and/or likenesses of recording artists associated with the Pre-1972 Recordings.   90.  Defendants’ actions, as described herein, were committed maliciously, intentionally,  fraudulently, and with a willful and conscious disregard of Plaintiffs’ and the Publicity Rights  Class’s rights, making an award of punitive damages appropriate in order to punish and deter  Defendants from engaging in the conduct alleged herein.   91.  As a result of Defendants’ misappropriation of valuable publicity rights, Plaintiffs and  the Publicity Rights Class have been injured.  92.  Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully  set forth herein.   93.  Defendants’ conduct, as alleged above, constituted and constitutes an unlawful and  unfair business practice in violation of Section 17200, et seq., of the California Business and  Professions Code.   Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page18 of 23 99.  Plaintiffs incorporate by reference the allegations in the above paragraphs as if fully  set forth herein.  100.  To the detriment of Plaintiffs and the Class, Defendants have been and continue to be  unjustly enriched as a result of the unlawful and/or wrongful conduct alleged herein. Defendants  have unjustly benefitted through the sale of subscriptions and advertisements in connection with their  satellite and internet radio services that use without authorization the Pre-1972 Recordings and the  publicity rights contained therein, and have also used such publicity rights in the advertising and  marketing of those services—leveraging for profit the hard-earned fame and reputation of Plaintiffs  and the Class.  Defendants have therefore benefitted from the use of Pre-1972 Recordings, as well as  the name, voice, and likeness rights of Plaintiffs and the Publicity Rights Class.  101.  The publicity rights of Plaintiffs and the Publicity Rights Class also have considerable  commercial value, deriving from Plaintiffs’ and Class Members’ stature and fame in American  popular culture.  102.  Defendants have intentionally used and continue to use Pre-1972 Recordings owned  by Plaintiffs and Misappropriation Class Members without license or authorization. Defendants have  intentionally used and continue to use names, voices, and likenesses of recording artists associated  with the Pre-1972 Recordings without Plaintiffs’ or Class Members’ consent.   103.  It would be unjust for Defendants to retain the benefits attained by their unlicensed  and wrongful use of the Plaintiffs’ Recordings and violations of Plaintiffs’ rights to use the publicity  rights of recording artists associated with the Pre-1972 Recordings. Accordingly, Plaintiffs seek, on  behalf of themselves and the Publicity Rights Class, full restitution of Defendants’ enrichment,  benefits, and ill-gotten gains acquired as a result of the unlawful and/or wrongful conduct alleged  herein.  Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page20 of 23 A.  Arthur and Barbara Sheridan   A.  Misappropriation Class Allegations   A.  Arthur and Barbara Sheridan ....................................................................................... 4  B.  Defendants Exploit Plaintiffs’ and Class Members’ Rights Without  Permission or Compensation ....................................................................................... 5   A.  Misappropriation Class Allegations .......................................................................... 10  B.  Publicity Rights Class Allegations ............................................................................ 11  C.  Allegations Pertaining to Both Classes ..................................................................... 12  COMMON LAW) ................................................................................................................. 16  COUNT V (UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE § 17200  ET SEQ.) ................................................................................................................................ 16  MISAPPROPRIATION, COMMON-LAW UNFAIR COMPETITION) ............................ 13  COUNT II (CONVERSION) ............................................................................................................ 14  COUNT III (VIOLATION OF RIGHTS OF PUBLICITY UNDER CAL. CIV. CODE  MISAPPROPRIATION PRAYER FOR RELIEF ............................................................................ 19  RIGHT OF PUBLICITY PRAYER FOR RELIEF ........................................................................... 19  DEMAND FOR JURY TRIAL ......................................................................................................... 20  Case3:15-cv-04081-MEJ   Document1   Filed09/08/15   Page2 of 23