JS 44C/SDNY

CIVIL COVER SHEET

REV. 4/2014

The JS-44 civilcover sheet and the information contained herein neither replace nor supplement the filingand service of
pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the
Judicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of
initiating the civil docket sheet.
PLAINTIFFS

FREEPLAY MUSIC, LLC

DEFENDAI
MAKER STI

fS CV lioo

JUDGE GARDEPHE

YS (IF
(IF KNOWN)
KNOWNl
ATTORNEYS

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

*^ ^" **&

BAKER & HOSTETLER LLP

45 ROCKEFELLER PLAZA

NEW YORK, NY 10111

(212) 589-4200

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(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

COPYRIGHT INFRINGEMENT; 17 U.S.C. 501

mm. m - *i-

FEB 1 I 2015

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? N<0fesL~lJjudge Previously Assigned
If yes, was this case Vol. fj Invol. fj Dismissed. No fj Yes fj If yes, give date
IS THIS AN INTERNATIONAL ARBITRATION CASE*

No 0

(PLACE AN[x] INONEBOXONLY)

YeS O
NATURE OF SUIT

TORTS

CONTRACT

&CaseNo.

ACTIONS UNDER STATUTES

PERSONAL INJURY

PERSONAL INJURY

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

[ ] 422 APPEAL

f] 400 STATE

[ J 367 HEALTHCARE/

[]110
[]120
1)130
I I 140
IPSO

[]151
[]152

INSURANCE

[ ] 310 AIRPLANE

PHARMACEUTICAL PERSONAL r , 625 DRUG RELATED

MARINE

[ j315 AIRPLANE PRODUCT

INJURY/PRODUCT LIABILITY

MILLER ACT
NEGOTIABLE
INSTRUMENT

[ ] 320 ASSAULT, LIBEL &

RECOVERY OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED

STUDENT LOANS

(EXCL VETERANS)
[]153

RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS

[]160
[]190

LIABILITY

SLANDER

[ ] 330 FEDERAL
EMPLOYERS'

LIABILITY

[ ] 350 MOTOR VEHICLE

[ ) 355 MOTOR VEHICLE

REAL PROPERTY

[J 210

LAND

[ ]220
[ ]230

CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT

I I 240
II245

TORTS TO LAND
TORT PRODUCT

[ ]290

ALL OTHER
REAL PROPERTY

LIABILITY

28 USC 157

[ ) 690 OTHER

INJURY PRODUCT
LIABILITY

PROPERTY RIGHTS

PERSONAL PROPERTY

W 820 COPYRIGHTS
[ ] 830 PATENT
[ ] 840 TRADEMARK

[ ] 370 OTHER FRAUD

[ ] 371 TRUTH IN LENDING

PRODUCT LIABILITY
INJURY

| ] 362 PERSONAL INJURY MED MALPRACTICE

SOCIAL SECURITY

[ ] 380 OTHER PERSONAL

LABOR

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

[ J 710 FAIR LABOR

PRODUCT LIABILITY

STANDARDS ACT

[ ] 720 LABOR/MGMT
PRISONER PETITIONS

[ ] 463 ALIEN DETAINEE

[ ] 510 MOTIONS TO
ACTIONS UNDER STATUTES

LIABILITY

[ ] 196 FRANCHISE

[ ] 368 ASBESTOS PERSONAL

[ ] 423 WITHDRAWAL

REAPPORTIONMENT

[
[
[
[
[

] 410 ANTITRUST
] 430 BANKS & BANKING
] 450 COMMERCE
] 460 DEPORTATION
] 470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT

(RICO)
[ ] 480 CONSUMER CREDIT
[ ] 490 CABLE/SATELLITETV

[ ] 850 SECURITIES/

[ J 360 OTHER PERSONAL

STOCKHOLDERS
SUITS
OTHER
CONTRACT
PRODUCT

PRODUCT LIABILITY

375 FALSE CLAIMS

28 USC 158

LIABILITY

[ ] 340 MARINE
[ ] 345 MARINE PRODUCT

CONTRACT

[]195

[ ] 365 PERSONAL INJURY

SEIZURE OF PROPERTY
21 USC 881

VACATE SENTENCE

28 USC 2255
CIVIL RIGHTS

[ ] 440 OTHER CIVIL RIGHTS

(Non-Prisoner)
[ ) 441 VOTING
[ ]442 EMPLOYMENT

[ ]443HOUSING/
ACCOMMODATIONS

[ ] 445 AMERICANS WITH

DISABILITIES EMPLOYMENT

[ ] 530 HABEAS CORPUS

[ ] 535 DEATH PENALTY
[ ] 540 MANDAMUS & OTHER

] 861
] 862
] 863
) 864
] 865

HIA (1395ff)
BLACK LUNG (923)
DIWC/DIWW (405(g))
SSID TITLE XVI
RSI (405(g))

COMMODITIES/
EXCHANGE

[ ] 890 OTHER STATUTORY

RELATIONS

ACTIONS

[ ] 740 RAILWAY LABOR ACT

[ ] 751 FAMILY MEDICAL
LEAVE ACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION

[ ] 791 EMPL RET INC

SECURITY ACT
IMMIGRATION

[ ] 891 AGRICULTURALACTS
FEDERAL TAX SUITS

[ ) 870 TAXES (U.S. Plaintiff or

Defendant)
| ) 871 IRS-THIRD PARTY

[ J 893 ENVIRONMENTAL
MATTERS

[ ] 895 FREEDOM OF

26 USC 7609

INFORMATION ACT

[ ] 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR

PRISONER CIVIL RIGHTS

[ ] 462 NATURALIZATION
[ ] 550 CIVIL RIGHTS
[ ) 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE

[
[
[
[
[

APPLICATION

[ ] 465 OTHER IMMIGRATION

ACTIONS

APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITY OF
STATE STATUTES

CONDITIONS OF CONFINEMENT

[ ] 446 AMERICANS WITH

DISABILITIES -OTHER

[ ] 448 EDUCATION

Checkifdemanded in complaint:

CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

DEMAND $_

OTHER

(fSO^SJT<AIT'eIM THIS CASE 'SRELATED T0 ACIVIL CASE NOW PENDING IN S.D.N.Y.?

JUDGE

DOCKET NUMBER

Check YES only ifdemandedin complaint

JURY DEMAND: S YES Qgo

NOTE: You mustalso submitat the timeof filing the Statementof Relatednessform (Form IH-32).

(PLACE AN x IN ONE BOX ONLY)

LXJ 1 Original

ORIGIN

2 Removed from

Proceeding

LJ 3 Remanded LJ 4 Reinstated or

state Court

from

3. ripart.esrepr.sent.d

EH 5 Transferred from Q 6 Multidistrict

Reopened

(Specify District)

7 Appeal to District

Litigation

Judge from

Appellate

lI

Magistrate Judge

Court

Judgment

| | b. At least one
party is pro se.

(PLACEANxINONEBOXONLY)
BASIS OFJURISDICTION
H1 U.S. PLAINTIFF 2 U.S. DEFENDANT 3 FEDERAL QUESTION
4 DIVERSITY

IF DIVERSITY, INDICATE
CITIZENSHIPBELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

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

DEF

CITIZEN OFTHIS STATE

[]1

[]1

CITIZEN OFANOTHER STATE

[ ]2 [ ]2

PTFDEF

CITIZEN ORSUBJECT OFA

[]3[]3

FOREIGN COUNTRY

INCORPORATED and PRINCIPAL PLACE

PTF

DEF

[15

[]5

[ J6

[ ]6

OF BUSINESS IN ANOTHER STATE

INCORPORATED or PRINCIPAL PLACE

[ ] 4 [ ]4

FOREIGN NATION

OF BUSINESS IN THIS STATE

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

FREEPLAY MUSIC, LLC

1650 BROADWAY, STE. 1108
NEW YORK, NEW YORK 10019

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

MAKER STUDIOS, INC.

500 SOUTH BUENA VISTA ST.

BURBANK, CALIFORNIA 91521

DEFENDANT(S) ADDRESS UNKNOWN

REPRESENTATION IS HEREBY MADE THAT, ATTHISTIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE91BENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one:

THIS ACTION SHOULD BE ASSIGNED TO:

WHITE PLAINS

[x] MANHATTAN

(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)

DATE 2/17/2015
RECEIPT #

SIGNATURTDF ATTORNEY OF RECORD

(_^C^

~S

ADMITTED TO PRACTICE IN THIS DISTRICT

~~"~

MYES (DATE ADMITTED Mo.0_5

Attorney BarCode # OW-9469

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 YORKSOUTHERN)

is so Designated.
.

Yr. 1998 )

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

FREEPLAY MUSIC, LLC,

1122
Civil Action No.

Plaintiff,
COMPLAINT AND
JURY DEMAND

v.

MAKER STUDIOS, INC.,

Defendant.

T>)0GV ^KUtrtiii

c- -

Plaintiff FreeplayMusic, LLC ("FPM"), through its undersigned attorneys, Baker :J

Hostetler, LLP, complains of defendant Maker Studios, Inc. ("Maker") as follows:

ro

Nature of the Action

1.

YouTube has become the premier source for digital entertainment. Every minute, 3

million videos are viewed on, and 300 hours of new content is uploaded to, YouTube.
Sometimes referred to as the TV of the internet, its millions of videos garner billions in revenue.
With the growth of YouTube's audience, a new breed of companiesdubbed multichannel
networks (MCNs)arose to capitalize on YouTube's vast revenue stream. In their effort to
become the TV networks of YouTube, the MCNs create and acquire video content, which they
monetize. Like traditional TV networks, MCNs are responsible for securing rights to content
and ensuring they do not infringe the intellectual property rights of others. But in many cases,
like this one, that responsibility has been eschewed to the detriment of copyright owners, like
FPM. The MCNs have misappropriated FPM's copyrights and profited from that
misappropriation, in clear violation of copyright law.
2.

With a library boasting tens of thousands of musical worksgenerating more than 1.8

million licenses in the last 20 months aloneFPM has, since its inception in 2001, always

embraced technology and successfully remained at the leading edge of the paradigm shifts in the
music industry. To help monitor unknown uses of songs in its catalogue, FPM teamed up with a
related but independent company called TuneSat, which has the premier audio recognition
technology.

3.

While seeking to uncover unknown uses of its clients' music, TuneSat discovered various

MCNs exploiting FPM's copyrighted music. None of these uses were authorized. Although
there appears to be unauthorized uses of other copyright holders' music, the size and success of
FPM's catalogue, coupled with its alliance with TuneSat, is the reason FPM was first to
recognize and address what appears to be a systemic problem.
4.

With TuneSat's technology and evidence of clear copyright infringement, FPM

approached various MCNs to alert them to this issue. Rather than simply suing, as it could have,
FPM continued to explore solutions to this problem. But despite their recognition that FPM's
copyrights were being infringed, the MCNs ceased serious negotiations. Last week, two brought
declaratory judgment actions, and other MCNsincluding Makerhave refused to address their
infringement and/or properly compensate FPM.
5.

Maker exploited at least 45 of FPM's copyrighted musical works. That exploitation came

at the expense of FPM, who never authorized Maker's use. Given the industry's apparent
decision to ignore this infringement, FPM is now left with no alternative but to bring this action,

and others like it, to protect its rights and the rights of hundreds of composers it represents.

605908418.1

Parties

6.

FPM is a Delaware limited liability company, with a principle place of business in New

York, New York.

7.

Upon information and belief, Maker is a Californiacorporation, with a principal place of

business at 500 South Buena Vista St., Burbank, California 91521.

Jurisdiction and Venue

8.

FPM's claims arise under the Copyright Act, 17 U.S.C. 101 et seq. Subject matter

jurisdiction over this action is conferred upon this Court by 28 U.S.C. 1331 and 1338.
9.

Venue in this District is proper under 28 U.S.C. 1391.

10.

The Court has personal jurisdiction over Maker because it conducts systematic and

continuous business over the internet, knowingly and repeatedly transmitting video files over the
internet to New York residents, and has performed acts, causing harm to FPM, including

infringing copyrights belonging to FPM, a New York copyright holder, which give rise to this
action.

Creation of FPM and Its Business

11.

FPM's founder and CEO, Scott P. Schreer, is one of America's most prolific and

performed TV composers and producers. As the driving creative force behind many of today's
top music branding and music packages for sports broadcasts, Schreer's credits include the NFL
on Fox theme, the MLB on Fox theme, the opening theme and underscore for ABC's Hope and
Faith, and The Cosby Show, among many others. One of New York's top studio musicians and
producers, Schreer has earned several Emmy nominations, seven BMI Writer of the Year awards
(2007-2013), and has written thousands of music compositions over the course of his career.

3
605908418.)

Schreer was recently voted one of America's Top 40 Music and Sports people of 2014 by ESPN
Magazine.
FPM

12.

In 2001, Schreer launched FPM, a high quality online music library. The music industry

was changing and facing new challenges, so FPM sought to create an environment in which both
emerging and established composers and artists had the opportunity to expose their music to
television and film licensing while maintaining the ability to exploit that music in other

mediums. Schreer, himself, is a contributing composer to a portion of FPM's catalogue.

13.

At inception, FPM's business model was focused primarily on licensing music for

television and feature films. The use of a musical work in any audio-visual formsuch as part
of a motion picture, television program, commercial, music video or other video, including a

video streamed over the Internetrequires authorization from the owner of the copyrights to the
musical composition and the sound recording. This authorization is referred to as a
"synchronization license."

14.

Music used in television and film generates revenue through: (i) public performances;

and (ii) upfront fees for synchronization licenses (for synchronizing music to video). Music and
videos are "performed" when they are broadcast or otherwise transmitted to the public, such as
on television, cable, satellite, internet, radio, etc. Performance Rights Organizations ("PROs"),
such as BMI and ASCAP, collect the fees for public performances and pay royalties to the rights
holders for broadcasts and other transmissions of this music.

15.

Focusing on the public performance income stream, FPM granted free synchronization

licenses to qualified network broadcasters. FPM's business model was visionary, in that it

605908418.1

eliminated synchronization fees, a barrier to entry. This new business model provided FPM's
music a competitive edge in the marketplace: producers were incentivized to use FPM's music as
their initial budget was reduced. But by increasing its market share, FPM would generate

additional performance fees, especially when a television program was successful.

16.

Offering a free synchronization license for non-commercial uses was a key component of

FPM's model. The more its music was used, the more appeal it would have for a wider

audience. Because its catalogue was meant to be used in audiovisual works, FPM was only
concerned with profiting from business and/or commercial uses of its music.
17.

To help develop its business model and increase exposure to its music, from about 2001

to 2005, FPM entered into a non-exclusive license with Apple. Under that arrangement, Apple

customers worldwide could freely download certain of FPM's copyrighted music for their
personal use. FPM's copyright music was also made available through Apple's DVD Studio Pro
and Final Cut Pro video editing software, which allowed customers to add a soundtrack to their
personal videos. FPM offered Apple customers free synchronization licenses for "personal, non
commercial uses"; if a customer's intended use of FPM's music was commercial and/or for-

profit, the customer was required to obtain a separate synchronization license from FPM.
18.

FPM's business has grown significantly since 2001. FPM now acts as a music publisher

for hundreds of composers and almost 50,000 musical works, 15,000 of which are currently
available on its website. This, however, is only a tiny fraction of the submissions FPM receives.
Because FPM will only represent commercially viable music, it rejects approximately 90%-95%
of all submissions.

605908418.1

FPM's Website

19.

Since 2001, FPM also has made its catalogue available on its website. Customers always

could download music from the FPM website. And consistent with its business model, FPM

issued free synchronization licenses for certain uses, including: (i) national television
broadcasts; (ii) feature-length films in U.S. theaters; (iii) in-class education; and (iv) personal
use. The first two types of uses were, again, to lower the barrier to entry for film and television.
The third and fourth were for exposure.

20.

There was never any ambiguity about what constituted a "personal use." The terms of

use published on FPM's website (the "Prior Terms of Use") made clear that personal use
included only "non-commercial purposes," such as "personal listening pleasure" and "family
slide show[s]." Excluded from personal use was any exploitation of FPM's music "posted on a
website."

21.

Under FPM's Prior Terms of Use, all other uses, including on both personal and revenue

generating websites, required a license. For videos, a synchronization license was required. To
request a license, a customer was required to complete a form, which included the customer's
explanation of the intended use of FPM's music.
22.

Under FPM's Prior Terms of Use, a customer could not exploit FPM's copyrighted music

on YouTube without a synchronization license.

23.

The personal video market evolved and more users turned to YouTube for displaying,

listening, and viewing content. Likewise, more users were using YouTube as the sole medium

for personal videos. Recognizing this trend, in 2013, FPM expanded the scope of the free

605908418.1

synchronization licenses it offered. FPM's synchronization licenses began allowing customers to

exploit certain music in personal videos on YouTube.
24.

In August 2013, FPM rolled out its new website, and began offering approximately 2,000

titles free for non-commercial use on YouTube.

25.

When a user logs on to FPM's website, http://www.freeplaymusic.com/, the user is

presented with a variety of choices and thousands of musical works (i.e., sound recordings and
the underlying musical compositions), all of which are available for certain types of exploitation.
Once the user chooses the desired musical work and selects "Add to Cart," the user is prompted
to choose a license type:

Terms of Use

06:16
YouTube

Business Use- Youtube (unlimited URLs}(1 Year(s), $250.00)

Personal use on YouTube onty(99 Year(s), SO.Q0)
Business

Multimedia Unlimited (non-broadcast) [worldwide](1 Year(s), S250.00)

Music on Hold [single track](1 Year(s), 25.00)
Web Page Use(1 Year(s), $100.00)
Multimedia one use (non-broadcast) [worldwide! 1 Day(s), S50.0G)
Game/App Use(1 Year(s). S150.00)

Add more Tracks

FreeifiKi to checkout

Education

In-Classroom Use(99 Year(s); 50.00)

Film

Commercial Film Festival [track](7 Day(s), S50.00)

Commercial Unlimited Film Festivals [pertrack]{1 Year(s), 5150.00)
Student Film Festival (non commercial)(1 Year(s). SO 99)
Professional Use (pertrack){1 Year(s), 500.00)
Indie trailer (theatrical and web) [US Oniy](1 Year(s), S250.00)
Internet
Personal use (Social Media)- non oromotional(99 YeartsV S0.99)

26.

The user cannot "Proceed to Checkout" without choosing a license type. A

synchronization license to play the track in a YouTube video has two options: (i) "Business

Use," which costs $250 for a one-year license, and (ii) "Personal Use," which is free.

605908418.1

27.

Under the terms of the synchronization license for "Personal Use," which is free, FPM

has the right to make a claim and receive revenue from YouTube for exploitation of those
videos. This is made clear when the user chooses "Personal Use," with the following terms:

Please read our TERMS OF USE carefully about the restrictions of

this license. Freeplay reserves the right to "claim" this music with
Google and monetize its use on your video. If you would like the
ability to monetize your videos or don't want us to monetize your
video you need to purchase a license. If you are a Multi-Channel
Network managed channel, such uses are considered Business
YouTube Uses and a license must be purchased. Please contact
our licensing department for a quote: contact@freeplaymusic.com
or (212) 974 0548.

28.

Once the user chooses a license and decides to "Proceed to Checkout," a window pops up

displaying the "FPM License," requiring the user to enter an email address confirming that he or
she has read the terms of the license. A copy of the license is then e-mailed to the confirmation

address entered by the user. The FPM personal synchronization license grants the user the right
to use the musical work for the "sole, limited and restricted purpose" of "Personal use on
YouTube only."

29.

Since August 2013, FPM has issued over 1.8 million licenses to the copyrighted music in

its library.
TuneSat

30.

After over a decade of research and development, in 2009, Schreer and Chris Woods

launched TuneSat, a global online audio fingerprint technology and recognition service. TuneSat

was established to help monitor broadcasts and other transmissions (i.e. public performances) of
music. TuneSat enables music copyright holders to digitally detect where their work is being
exploited by searching across various platforms for matches. Tunesat tracks 320 television

8
605908418.1

networks in 14 countries, including the United States, United Kingdom, Germany, France, Spain
and Italy, and has over 50 million fingerprinted songs in its database.
31.

TuneSat provided the perfect solution to copyright owners, like FPM, whose main source

of income was based on payment for broadcasts and other transmissions of the films and
television shows.

32.

In 2012, TuneSat launched a product to detect unknown streaming of music across the

Internet. TuneSat's web monitoring product searches publicly available domains, identifying
music used in streaming audio, video, podcasts, and other multimedia files, including content on
YouTube.

33.

Although TuneSat has many other clients, TuneSat's technology was the perfect analog

to FPMit could detect the public performance of FPM's copyrighted music across the Internet.
TuneSat detected the rampant use of FPM's copyrighted music by the MCNs, including the uses
by Maker here.
Maker and the MCN Business

34.

Most content on YouTube is uploaded by individuals, but media corporations and other

organizations, including MCNs, use YouTube as a platform to distribute content.

35.

Maker is an MCN.

36.

MCNs are independent companies that are built on top of the YouTube platform, using

YouTube's video capabilities and monetization platform. Although there are many MCN
channels on YouTube, consumers cannot necessarily detect whether they are watching a video
on YouTube's network or on an MCN's.

605908418.1

37.

MCNs create and stream their own content. They also scour YouTube, inviting channels

that gain popularity to join their networks. MCNs offer programming, funding, digital rights
management, monetization/sales, and audience development services. In return, the MCNs keep
a percentage of the advertising revenue from the channel and drive-up their viewership through
the channels popularity, further increasing their advertising revenue. MCNs will also offer to
exploit this content in other places, including on their own websites.
38.

MCNs are a multi-billion dollar business. Upon information and belief, in 2014, Maker

was acquired for almost $1 billion.

39.

But MCNs' lucrative business model also has created significant concerns, including

increasing opportunities for copyright infringement. Upon information and belief, in response to
those concerns, in 2014, YouTube issued a policy requiring MCNs to designate each channel
within its network as an "affiliate" or "managed" partner.
40.

Channels designated as affiliates take full responsibility for their content, which is

reviewed and approved by YouTube. Those channels are not at issue here.
41.

For channels designated as managed partners, the MCN is responsible for copyright

compliance and instituting safeguards to protect against copyright violations. In exchange for
their agreement to self-police, MCNs are permitted to monetize videos instantly and to the
exclusion of third parties.

42.

Because YouTube does not review MCN managed channels' content, copyright owners

are not advised by YouTube of the use of their content. This means that when a managed
channel uploads a video that includes FPM's copyrighted music, FPM is not notified by

10
605908418.1

YouTube. Content owners, like FPM, only learn of the use of their content if the MCN advises
them or through happenstance.

Utilizing TuneSat's Technology, FPM Learns ofMCNs' Unauthorized Use

43.

With over 200,000,000 impressions to its website as of 2013, FPM is one of the most

widely trafficked production music libraries in the industry.

44.

But before TuneSat, FPM suffered from the same problem as other artists, publishers, and

copyright ownersthe inability to track the unlicensed uses of its copyrights.

45.

By hiring TuneSat, FPM uncovered and exposed the systemic unauthorized use of its

copyrighted music by MCN managed channels, such as Maker's managed channels.

46.

For over a year, FPM and its administrator have been notifying MCNs that FPM's

copyrights have been infringed and exploited without authorization. FPM and Tunesat

approached the MCNsincluding Makeroffering a variety of solutions. None were deemed

acceptable.

47.

To date, most MCNs, including Maker, have refused to remedy this wrongdoing.

48.

FPM negotiated with many MCNs, including Maker. But just as Maker refused to take a

proper synchronization license from FPM before uploading the videos, or otherwise police
against this infringement, Maker, like other MCNs has decided to ignore this infringement.

11
605908418.1

The FPM Copyrights at Issue and Maker's Unauthorized Exploitation

FPM's Copyrights

49.

FPM is the owner of the registered copyrights (the "FPM Copyrights") in and to the

musical compositions and sound recordings (the "FPM Copyrighted Music") set forth below:
i. "Knife Fight," covered by Registration No. SR333-651 covering the collection
Alternative Rock Volume 1

ii. "Field Forces," covered by Registration No. SR633-491 covering the collection
Freeplay Music CD #13
iii. "Night Watch," covered by Registration No. SR335-613 covering the collection Just
The News Volume 1

iv. "Race To Action," covered by Registration No. SR335-613 covering the collection
Just The News Volume 1

v. "One Rainy Night," covered by Registration No. SR362-469 covering the collection
Just The Weather Volume 1

vi. "Breezy and Mild," covered by Registration No. SR362-469 covering the collection
Just The Weather Volume 1

vii. "Now is the Time," covered by Registration No. SR335-613 covering the collection
Just The News Volume 1

viii. "Bunny Food," covered by Registration No. SR374-911 covering the collection
Freeplay Music Corp./DVD #4
ix. "Bad Road," covered by Registration No. SR337-144 covering the collection Hard
Rock Volume 1

x. "Old Skool (30 seconds)," covered by Registration No. SR335-614 covering the
collection Hip Hop Volume 2
xi. "Think Happy," covered by Registration No. SR378-924 covering the collection
Freeplay Music Corp./DVD #5
xii. "Song About Love (60 Seconds)," covered by Registration No. SR378-924 covering
the collection Freeplay Music Corp./DVD #5
xiii. "Do For You," covered by Registration No. SR378-924 covering the collection
Freeplay Music Corp./DVD #5

12
605908418.1

xiv. "Run For Love Version 1," covered by Registration No. SR378-924 covering the
collection Freeplay Music Corp./DVD #5
xv. "Penthouse For Two," covered by Registration No. SR334-609 covering the
collection Lounge Volume 1

xvi. "Third Floor Lingerie," covered by Registration No. SR334-609 covering the
collection Lounge Volume 1
xvii. "Shopping Spree," covered by Registration No. SR334-609 covering the collection
Lounge Volume 1
xviii. "Aisle Nine Please," covered by Registration No. SR334-609 covering the collection
Lounge Volume 1
xix. "Lounge Lizard," covered by Registration No. SR378-924 covering the collection
Freeplay Music Corp./DVD #5
xx. "Rumba Chicki," covered by Registration No. SR334-609 covering the collection
Lounge Volume 1
xxi. "Swingtime," covered by Registration No. SR334-609 covering the collection Lounge
Volume 1

xxii. "Floor Sample," covered by Registration No. SR334-609 covering the collection
Lounge Volume 1
xxiii. "No Love," covered by Registration No. SR334-609 covering the collection Lounge
Volume 1

xxiv. "Gremlins," covered by Registration No. SR386-596 covering the collection Freeplay
Music Corp./DVD #6
xxv. "Sand Storms," covered by Registration No. SR386-596 covering the collection
Freeplay Music Corp./DVD #6
xxvi. "Entry Of The Nations (Full version)," covered by Registration No. SR3 86-596
covering the collection Freeplay Music Corp./DVD #6

xxvii. "Thunderization," covered by Registration No. SR3 86-596 covering the collection
Freeplay Music Corp./DVD #6
xxviii. "Tears Of Joy," covered by Registration No. SR386-596 covering the collection
Freeplay Music Corp./DVD #6

xxix. "Hard To Hold," covered by Registration No. SR335-719 covering the collection Pop
Volume 1

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xxx. "Alley Kat," covered by Registration No. SR335-719 covering the collection Pop
Volume 1

xxxi. "Sly Stride," covered by Registration No. SR374-911 covering the collection
Freeplay Music Corp./DVD #4
xxxii. "Hot Summer Nights," covered by Registration No. SR374-911 covering the
collection Freeplay Music Corp./DVD #4

xxxiii. "Bad Bad Boy," covered by Registration No. SR335-719 covering the collection Pop
Volume 1

xxxiv. "Hard To Hold (60 Seconds)," covered by Registration No. SR335-719 covering the
collection Pop Volume 1

xxxv. "Summer Trip (Full version)," covered by Registration No. SR386-596 covering the
collection Freeplay Music Corp./DVD #6
xxxvi. "Bossa Pop," covered by Registration No. SR386-596 covering the collection
Freeplay Music Corp./DVD #6
xxxvii. "Holla," covered by Registration No. SR374-911 covering the collection Freeplay
Music Corp./DVD #4
xxxviii. "El Rey," covered by Registration No. SR337-557 covering the collection Promos
Volume 1

xxxix. "Attention Shoppers," covered by Registration No. SR336-994 covering the

collection Retail Volume 1

xl. "Moving Out (Full version)," covered by Registration No. SR336-994 covering the
collection Retail Volume 1

xii. "Pulse," covered by Registration No. SR covering the collection 336-994 covering
the collection Retail Volume 1

xlii. "For Whom The Bell Tolls," covered by Registration No. SR335-537 covering the
collection Sports Promos Volume 1
xliii. "Windy Day," covered by Registration No. SR333-635 covering the collection TV
Themes Volume 1

xliv. "Sunset Cruise," covered by Registration No. SR333-635 covering the collection TV
Themes Volume 1

xlv. "Uncertain Achievement," covered by Registration No. SR333-618 covering the

collection World Mix Volume 4

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Maker's Unlicensed Use ofFPM's Copyrighted Music

50.

Maker has engaged in at least 60 uses of the FPM Copyrights, including:

i. FPM's copyrighted musical work "Knife Fight" was exploited on the following
website: http://www.youtube.com/watch?v=2KYUl lhXEr4;
ii. FPM's copyrighted musical work "Field Forces" was exploited on the following
website: http://www.youtube.com/watch?v=vifJdIxRMXs;

iii. FPM's copyrighted musical work "Night Watch" was exploited on the following
website: http://www.youtube.com/watch?v=t-qPcRcBp6o;
iv. FPM's copyrighted musical work "Race To Action" was exploited on the following
websites: http://www.youtube.com/watch?v=TuMA94gZn6o;
http://www.youtube.com/watch?v=A5p8wHD9qEc;
http://www.youtube.com/watch?v=eTTICAwrRpA;
http://www.youtube.com/watch?v=nAonJxLvH80;
http://www.youtube.com/watch?v=pFgrELuP2NQ;
v. FPM's copyrighted musical work "One Rainy Night" was exploited on the following
website: http://www.youtube.com/watch?v=AKrjgDGG5cQ;
vi. FPM's copyrighted musical work "Breezy And Mild" was exploited on the following
website: http://www.youtube.com/watch?v=nvfStQWYhWA;
vii. FPM's copyrighted musical work "Now Is The Time" was exploited on the following
website: http://www.youtube.com/watch?v=DbSqIfxbN9A;
viii. FPM's copyrighted musical work "Bunny Food" was exploited on the following
website: http://www.youtube.com/watch?v=GghR-YctMb4;
ix. FPM's copyrighted musical work "Bad Road" was exploited on the following
website: http://www.youtube.com/watch?v=nvfStQWYhWA;

x. FPM's copyrighted musical work "Old Skool (30 seconds)" was exploited on the
following website: http://www.youtube.com/watch?v=6K-uje35GBs;
xi. FPM's copyrighted musical work "Think Happy" was exploited on the following
website: http://www.youtube.com/watch?v=lLFaMrNPQGU;
xii. FPM's copyrighted musical work "Song About Love (60 Seconds)" was exploited on
the following websites: http://www.youtube.com/watch?v=51WqiJfe-v8;
http://www.youtube.com/watch?v=K8I7pMnV 1-4;
http://www.youtube.com/watch?v=zXnscR4PjeA

xiii. FPM's copyrighted musical work "Do For You (Full version)" was exploited on the
following website: http://www.youtube.com/watch?v=51WqiJfe-v8;
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xiv. FPM's copyrighted musical work "Run For Love Version 1" was exploited on the
following website: http://www.youtube.corn/watch?v=KNQBSlcnIEM;
xv. FPM's copyrighted musical work "Aisle Nine Please" was exploited on the following
websites: http://www.youtube.com/watch?v=Q3scnR5GKGk;
http://www.youtube.com/watch?v=xbpuhPSgUOw;
http://www.youtube.com/watch?v=0dNv-22ntOw;
http://www.youtube.com/watch?v=rOsVYbcphC0;
http ://www.youtube.com/watch?v=u9cRHwhr4h8;
http://www.youtube.com/watch?v=WsGG-xZzfT8
xvi. FPM's copyrighted musical work "Penthouse For Two" was exploited on the
following websites: http://www.youtube.com/watch?v=_4vy5-29ul0;
http://www.youtube.com/watch?v=eTTICAwrRpA
xvii. FPM's copyrighted musical work "Third Floor Lingerie" was exploited on the
following website: http://www.youtube.com/watch?v=nsTMZo92Zdo;
xviii. FPM's copyrighted musical work "Shopping Spree" was exploited on the following
website: http://www.youtube.com/watch?v=UUsvKlouU7k;
xix. FPM's copyrighted musical work "Lounge Lizard" was exploited on the following
website: http://www.youtube.com/watch?v:=3d2jRZlr_2w
xx. FPM's copyrighted musical work "Rumba Chicki" was exploited on the following
website: http://www.youtube.com/watch?v=eTTICAwrRpA;
xxi. FPM's copyrighted musical work "Swingtime" was exploited on the following
website: http://www.youtube.com/watch?v=eTTICAwrRpA;
xxii. FPM's copyrighted musical work "Floor Sample" was exploited on the following
website: http://www.youtube.com/watch?v=aBplnwqId7g;
xxiii. FPM's copyrighted musical work "No Love" was exploited on the following website:
http://www.youtube.com/watch?v=7F5zeWijD7c;

xxiv. FPM's copyrighted musical work "Gremlins" was exploited on the following website:
http://www.youtube.com/watch?v=DZ_RB6oFjDA;
xxv. FPM's copyrighted musical work "Sand Storms" was exploited on the following
website: http://www.youtube.com/watch?v=DZ_RB6oFjDA;
xxvi. FPM's copyrighted musical work "Entry Of The Nations (Full version)" was
exploited on the following website: http://www.youtube.com/watch?v=aBplnwqId7g;

xxvii. FPM's copyrighted musical work "Thunderization" was exploited on the following
website: http://www.youtube.com/watch?v=DZ_RB6oFjDA;

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xxviii. FPM's copyrighted musical work "Tears Of Joy" was exploited on the following
website: http://www.youtube.com/watch?v=DZ_RB6oFjDA;
xxix. FPM's copyrighted musical work "Hard To Hold" was exploited on the following
website: http://www.youtube.com/watch?v=_We5bN8eyAI;
xxx. FPM's copyrighted musical work "Alley Kat" was exploited on the following
website: http://www.youtube.com/watch?v=pbTc7CYRSQE;
xxxi. FPM's copyrighted musical work "Sly Stride" was exploited on the following
website: http://www.youtube.com/watch?v=K3BmZqAo8cQ;
xxxii. FPM's copyrighted musical work "Hot Summer Nights" was exploited on the
following website: http://www.youtube.com/watch?v=6SqanHKuZsk;
xxxiii. FPM's copyrighted musical work "Bad Bad Boy" was exploited on the following
website: http://www.youtube.com/watch?v=CAEJQYMFVLA;
xxxiv. FPM's copyrighted musical work "Hard To Hold (60 Seconds)" was exploited on the
following website: http://www.youtube.com/watch?v=6K-uje35GBs;
xxxv. FPM's copyrighted musical work "Summer Trip (Full version)" was exploited on the
following website: http://www.youtube.com/watch?v=dkGB8EOyGDo;
xxxvi. FPM's copyrighted musical work "Bossa Pop" was exploited on the following
website: http://www.youtube.com/watch?v=dkGB8EOyGDo;
xxxvii. FPM's copyrighted musical work "Holla" was exploited on the following website:
http://www.youtube.com/watch?v=XfX9cpuOamQ;
xxxviii. FPM's copyrighted musical work "El Rey" was exploited on the following website:
http://www.youtube.com/watch?v=t-qPcRcBp6o;
xxxix. FPM's copyrighted musical work "Attention Shoppers" was exploited on the
following websites: http://www.youtube.com/watch?v=NkCsfvqIsvs;
http://www.youtube.com/watch?v=CdrPXDdaRqg;
http://www.youtube.com/watch?v=DH_xQmslEwE;
xl. FPM's copyrighted musical work "Moving Out (Full version)" was exploited on the
following website: http://www.youtube.com/watch?v=_We5bN8eyAI;
xii. FPM's copyrighted musical work "Pulse" was exploited on the following websites:
http://www.youtube.com/watch?v=nRo1D8auPEs;
http://www.youtube.com/watch?v=Zp-PX13ZlX8

xlii. FPM's copyrighted musical work "For Whom The Bell Tolls" was exploited on the
following website: http://www.youtube.com/watch?v=P5bvA8vcYGA;

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xliii. FPM's copyrighted musical work "Windy Day" was exploited on the following
website: http://www.youtube.com/watch?v=Wwny2ClQUW0;
xliv. FPM's copyrighted musical work "Sunset Cruise" was exploited on the following
website: http://www.youtube.com/watch?v=TuMA94gZn6o; and
xlv. FPM's copyrighted musical work "Uncertain Achievement" was exploited on the
following website: http://www.youtube.com/watch?v=nRolD8auPEs;
51.

Upon information and belief, Maker monetized the uses of FPM's Copyrighted Music by,

among other things, placing advertisements in those videos and/or using the viewership of those
videos to increase the amount of their advertising revenues.
Count I:

Copyright Infringement

52.

FPM incorporates the allegations set forth in paragraphs 1 through 51 hereof, inclusive,

as though the same were set forth herein.

53.

This cause of action arises under 17 U.S.C. 501.

54.

Each of the FPM Copyrights has been registered with the United States Copyright Office.

55.

FPM owns all exclusive rights under 17 U.S.C. 106 to the FPM Copyrighted Music.

56.

Each of the musical works covered by the FPM Copyrights is an original work and

constitutes copyrightable subject matter within the meaning of 17 U.S.C. 102.

57.

FPM has never granted Maker or otherwise authorized Maker to exploit the musical

works covered by the FPM Copyrights.

58.

Maker's acts violate FPM's exclusive rights under 17 U.S.C. 106.

59.

Maker's infringement of the FPM Copyrights is and has been willful, intentional,

purposeful, and/or in disregard of FPM's rights.

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605908418.1

60.

FPM is entitled to its damages and Maker's profits from the alleged infringement, in an

amount to be proven at trial.

61.

In the alternative, FPM is entitled to statutory damages, in an amount of up to $150,000

per infringed copyright.

PRAYER FOR RELIEF

WHEREFORE, FPM respectfully prays for judgment against Maker as

follows:

(a)

for a ruling that Maker has willfully infringed FPM's copyrights;

(b)

for injunctive relief prohibiting Maker from exploiting FPM's

copyrighted music;

(c)

for FPM's damages and, to the extent not duplicative, Maker's profits
attributable to the infringement;

(d)

in the alternative to actual damages, for statutory damages under 17

U.S.C. 504(c), in an amount of up to $150,000 per work;

(e)

for FPM's costs of this action, including reasonable attorneys' fees under 17
U.S.C. 505;

(f)

for prejudgment and post judgment interest; and

(g)

for such other and further relief as the Court deems proper and just.

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DEMAND FOR JURY TRIAL

FPM requests a trial by jury on all issues so triable.

Respectfully submitted,
BAKER HOSTETLER, LLP

Dated:

February 17, 2014

New York, New York
By: .
Oren J. Warshavsky

Email: owarshavsky@bakerlaw.com
Tatiana Markel

Email: tmarkel@bakerlaw.com
45 Rockefeller Plaza

New York, New York 10111

Telephone: (212) 589-4624

Facsimile: (212) 589-4201
Attorneysfor Plaintiff

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