Rude Music Inc v. Newt 2012, Inc. et al

Filing 41

MOTION by Plaintiff Rude Music Inc to supplement its Motion to Strike Affirmative Defenses (Attachments: # 1 Exhibit A)(McGarry, Annette)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

RUDE MUSIC, INC.,
Plaintiffs,
v.
NEWT 2012, INC.,NEWT
GINGRICH, and AMERICAN
CONSERVATIVE UNION,
Defendants.

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) Case No. 12 cv 640
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) Judge Kennelly
) Magistrate Judge Finnegan
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PLAINTIFF’S SUPPLEMENT TO ITS MOTION
TO STRIKE AFFIRMATIVE DEFENSES
At the hearing on Rude Music, Inc.’s motion to strike, the Court continued
the motion and gave defendants Newt 2012, Inc. and Newt Gingrich (collectively,
“Gingrich”) an opportunity to amend their answer affirmative defenses.

That

opportunity was squandered.
The improper defenses in Gingrich’s original answer fell into one or more
of three general categories:

(1) “defenses” that were not true affirmative

defenses, but rather denials of facts alleged in the complaint or elements of Rude
Music’s copyright claim; (2) defenses that were pleaded only in the barest
conclusory terms, in violation of Federal Rules 8 and 9; and (3) defenses that
were legally inadequate.
A copy of Gingrich’s amended answer and affirmative defenses is
attached as Exhibit 1. Gingrich has, for the most part, abandoned the defenses
that fall into the first category (i.e., failure to state a claim, lack of standing, Rude
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Music suffered no damage or its damage was caused by third parties), as well as
the defenses of unclean hands and “good faith.” (Exhibit 1 at 8-10) Gingrich,
however, has failed to cure the remaining defects in his initial answer.
Six of Gingrich’s amended affirmative defenses still consist only of bare
legal conclusions devoid of any factual support:
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“Some or all of Plaintiff’s claims as pled may be barred by the applicable
Statute of Limitations.” (Sixth Affirmative Defense)

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“Some or all of Plaintiff’s claims as pled may be barred by the Doctrines of
Laches.” (Seventh Affirmative Defense)

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“Plaintiff did not exercise due care and did not act reasonably to protect
itself or to mitigate any damages that they may have allegedly sustained
by reason of Defendants' alleged wrongful conduct.” (Eighth Affirmative
Defense)

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“To the extent any of the acts or omissions alleged in the Complaint
occurred, Plaintiff and/or a co-owner/co-author of the alleged copyright
authorized, licensed, or consented to it expressly, by implication, or by
conduct. Defendants reserve the right to supplement its affirmative
defenses following a reasonable discovery period.” (Ninth Affirmative
Defense)

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“Plaintiff’s claims are barred, in whole or in part, by the equitable
doctrines of waiver, acquiescence and/or estoppel.” (Tenth Affirmative
Defense)

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“Upon information and belief, Plaintiff has failed to meet and plead the
statutory requirements that are conditions precedent to maintaining this
action and/or to the recovery of statutory damages of any kind.” (Eleventh
Affirmative Defense)

(Exhibit 1, at 9-10). Despite a second bite at the apple, Gingrich has failed to
plead any facts that support an defense of the statute of limitations or laches;
plead any facts that suggest that Rude Music failed to mitigate damages; plead
any facts indicating that Rude Music somehow waived its claim; identify any
person or any conduct that amounts to express or implicit consent to Gingrich’s
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infringement of the song; or identify statutory conditions precedent that Rude
Music allegedly failed to fulfill.
Again, Gingrich has listed, rather than pleaded, affirmative defenses. His
amended answer affords Rude Music no more notice of Gingrich’s allegations
than did his initial pleading. Gingrich’s Sixth, Seventh, Eighth, Ninth, Tenth and
Eleventh affirmative defenses should be stricken with prejudice.
Gingrich did attempt to flesh out one of his previously-pleaded defenses,
that Rude Music has failed to join an indispensable party. (Third Affirmative
Defense, Exhibit 1 at 8-9) According to Gingrich, Rude Music’s claims may be
barred by the existence of licenses issued by performing rights organizations
such as ASCAP or BMI. Gingrich contends that these organizations, or persons
who obtained the licenses from these organizations, are indispensable parties.
(Id.) Gingrich is confusing “indispensable party” with “potential witness.” It is
well-settled that a licensing agent such as ASCAP is not an indispensable party
in an infringement suit brought by the copyright owner. Bourne Co. v. Hunter
Country Club, Inc., 990 F.2d 934, 937 (7th Cir. 1993); Famous Music Corp. v.
Maholias, 53 F.R.D. 364 (E.D. Wis., 1971). Gingrich’s amended Third Affirmative
Defense is defective as a matter of law and should be stricken.
Finally, Gingrich has simply repleaded his assertion that his infringement
is protected by the First Amendment. (Thirteenth Affirmative Defense) He has
pleaded nothing that would distinguish a “First Amendment” defense from a “fair
use” defense. See Eldred v. Ashcroft, 537 U.S. 186, 219-21 (2003); Chicago Bd.

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Of Education v. Substance, Inc., 354 F.3d 624, 631 (7th Cir. 2003). Gingrich’s
amended Thirteenth Affirmative Defense should be stricken as duplicative.
CONCLUSION
Gingrich has disregarded the opportunity to correct the errors in his
affirmative defenses, and simply reasserted the same defective defenses.
Accordingly, Rude Music asks that the Court strike with prejudice the Third,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Thirteenth affirmative
defenses alleged in Gingrich’s amended answer and award Plaintiff its fees in
having to file this Supplement.

Respectfully submitted,
/s/ Annette M. McGarry
Annette M. McGarry (#6205751)
[e-mail]
Marianne C. Holzhall (#6204057)
[e-mail]
McGarry & McGarry, LLC
120 North LaSalle Street, Suite 1100
Chicago, IL 60602
[phone]
Attorneys for Rude Music, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on March 29, 2012, the foregoing Plaintiff’s
Supplement to Its Motion to Strike Affirmative Defenses was electronically filed
using the CM/ECF system and served upon:
Karl Braun
Byron Lindberg
Hall, Booth, Smith & Slover, PC
611 Commerce Street, Suite 2925
Nashville, TN 37203
Brian A. Rosenblatt
Darren P. Grady
Kyra E. Flores
SmithAmundsen LLC
150 North Michigan Avenue, Suite 3300
Chicago, IL 60601
Brian E. Cohen
Steven F. Pflaum
Neal, Gerber & Eisenberg
2 North LaSalle Street, Suite 1700
Chicago, IL 69602
Thomas Kirby
Wiley Rein LLP
1776 K Street N.W.
Washington, DC 20006

/s/ Annette M. McGarry

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EXHIBIT 1

Case: 1:12-cv-00640 Document #: 38 Filed: 03/27/12 Page 1 of 11 PageID #:195

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
RUDE MUSIC, INC.
Plaintiff,
v.
NEWT 2012, INC., NEWT GINGRICH, and
AMERICAN CONSERVATIVE UNION
Defendants.

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NO.: 1:12-cv-00640
JURY DEMAND
Judge Kennelly

______________________________________________________________________________
AMENDED ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS
NEWT 2012, INC. and NEWT GINGRICH

COME NOW, Defendants Newt 2012, Inc. (“Newt 2012”) and Newt Gingrich (“Mr.
Gingrich”) (collectively, the “Defendants”), by and through their undersigned counsel and
hereby submit their Amended Answer to the Complaint as follows:
NATURE OF CASE
1.

This is an action for copyright infringement, in violation of 17 U.S.C. § 501,

arising from the defendants’ unauthorized public performances and distribution of Rude Music’s
copyrighted musical composition.
RESPONSE: While these Defendants admit that this action sounds in copyright
infringement, Defendants specifically deny Plaintiff’s allegations of copyright infringement.
Defendants deny violation of 17 U.S.C. § 501 and deny that Plaintiff has any valid claims as
against Defendants pursuant to the Copyright Act or pursuant to any other state or federal
statutes or under common law. In further response, Defendants deny Plaintiff’s allegations of
unauthorized public performances and distribution of Plaintiff’s musical composition by

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Defendants. Plaintiff lacks standing to assert some or all of the claims alleged in the Complaint.
Some or all of the claims alleged against these Defendants were authorized pursuant to valid
license(s) issued by appropriate Performing Rights Organization(s) (“PROs”).

Plaintiff is

represented by ASCAP, the PRO with which Plaintiff is affiliated.

JURISDICTION AND VENUE
2.

This court has subject matter jurisdiction of this claim pursuant to 28 U.S.C. §§

1331 and 1338(a).
RESPONSE: Paragraph 2 of Plaintiff’s Complaint states a legal conclusion as to which
no responsive pleading is required.

To the extent a response is deemed to be required,

Defendants aver that this Court has subject matter jurisdiction over Copyright Infringement
claims in general, but denies any and all wrongdoing. Further answering, these Defendants deny
the remaining averments contained within Paragraph 2 of Plaintiff’s Complaint and demand
strict proof thereof. Defendants re-assert that Plaintiff lacks standing to bring some or all of the
claims alleged in the Complaint.
3.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), as Defendants

solicit and are doing business in this district, and Rude Music is being injured in this district.
RESPONSE: Paragraph 3 of Plaintiff’s Complaint states a legal conclusion regarding
the general Federal Venue Statute as to which no responsive pleading is required. To the extent
a response is deemed to be required, Defendants deny any conduct that would give rise to these
allegations in this cause. Further answering, Defendants deny the remaining averments contained
within Paragraph 3 of Plaintiff’s Complaint and demand strict proof thereof. Defendants reassert that Plaintiff lacks standing to bring some or all of the claims alleged in the Complaint.

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PARTIES
3.[sic]

Rude Music is an Illinois corporation, with its principal place of business

at 5140 Grove Road, Palatine, Illinois. Rude Music is owned solely by Frank M. Sullivan III,
and operates as the publisher of Sullivan’s music compositions.
RESPONSE: The fourth paragraph of Plaintiff’s Complaint is mistakenly identified as
paragraph “3.” For ease of reference, Defendants have re-numbered the paragraphs of this
Answer to coincide with the paragraph numbers enumerated in Plaintiff’s Complaint resulting in
two paragraphs being enumerated as paragraph “3.” Defendants are without knowledge or
information sufficient to form a belief as to the truth of the averments contained within this
additional enumerated Paragraph 3 of Plaintiff’s Complaint and demand strict proof thereof.
4.

Newt 2012, Inc. is a Georgia corporation, having a principal place of business at

3110 Maple Drive, Suite 400, Atlanta, Georgia.
RESPONSE: Defendants admit the averments contained within enumerated Paragraph 4
of Plaintiff’s Complaint and, as such, jurisdiction and venue are improper as to this Defendant.
5.

Upon information and belief, Newt Gingrich is an individual residing in McLean,

Virginia, and is chief executive officer of Newt 2012, Inc.
RESPONSE: Defendants admit the averments contained within enumerated Paragraph 5
of Plaintiff’s Complaint and, as such, jurisdiction and venue are improper as to this Defendant.
6.

The American Conservative Union is a membership organization, having a

principal place of business at 1331 H Street N.W., Washington, D.C.
RESPONSE: Defendants are without knowledge or information sufficient to form a
belief as to the truth of the averments contained within enumerated Paragraph 6 of Plaintiff’s
Complaint.

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FACTS
7.

The musical band SURVIVOR was formed in 1977, with Sullivan as one of its

founding members.
RESPONSE: Defendants are without knowledge or information sufficient to form a
belief as to the truth of the averments contained within enumerated Paragraph 7 of Plaintiff’s
Complaint as pled.
8.

Sullivan is a co-author of the musical composition “Eye of the Tiger,” which was

the principal theme song for the movie Rocky III and achieved number one status in the United
Stated and throughout the world. The song won Grammy and People’s Choice awards and was
Oscar-nominated.
RESPONSE: Defendants are without knowledge or information sufficient to form a
belief as to the truth of the averments contained within enumerated Paragraph 8 of Plaintiff’s
Complaint as pled and demand strict proof thereof.
9.

“Eye of the Tiger” is the subject of a valid copyright, which is co-owned by Rude

Music and was duly registered in the Copyright Office on June 7, 1982 (PA 141854)
RESPONSE: Defendants are without knowledge or information sufficient to form a
belief as to the truth of the averments contained within enumerated Paragraph 9 of Plaintiff’s
Complaint and demand strict proof thereof.
10.

On information and belief, since at least as early as 2009, Mr. Gingrich took the

stage at political conferences and similar public events as a recording of "Eye of the Tiger" was
played over the public address system. The events at which the song was featured included, at
least, the Conservative Political Action Conference ("CPAC") in 2009, 2010 and 2011, and the

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Southern Republican Leadership Conference in 2010. The CPAC is hosted by the American
Conservative Union's fundraising arm, the American Conservative Union Foundation.
RESPONSE: To the extent that the averments contained within enumerated Paragraph
10 of Plaintiff’s Complaint pertain to these Defendants, Defendants admit that a recording of
“Eye of the Tiger” has been included in background music with other various recordings at
certain political events sponsored by other third parties at which Mr. Gingrich has appeared but
deny causing any alleged unauthorized performances of the composition. Additionally, as the
allegations herein lack specificity as to which conferences, which public events, and where and
when certain events allegedly took place, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the remaining averments contained within
enumerated Paragraph 10 of Plaintiff’s Complaint as pled and demand strict proof thereof.
11.

The American Conservative Union has posted on the internet video recordings of

at least the 2010 and 2011 conferences, featuring Mr. Gingrich and "Eye of the Tiger." The
reproduction and distribution of these recorded performances of the copyrighted composition is
unlicensed and unauthorized.
RESPONSE: This allegation is not directed at these Defendants, and accordingly, a
response is not required. To the extent that a response is required as to allegations concerning
another party’s conduct, these Defendants are without knowledge or information sufficient to
form a belief as to the truth of the averments contained within enumerated Paragraph 11 of
Plaintiff’s Complaint as pled and demand strict proof thereof.
12.

As his campaign for the Republican presidential nomination has ramped up, Mr.

Gingrich and Newt 2012, Inc. have caused a recording of “Eye of the Tiger” to be publicly
performed at numerous campaign appearances by Mr. Gingrich. For example, in Doylestown,

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Pennsylvania, Mr. Gingrich entered the packed Moose Lodge for a speech as the song “pulsed,”
according to the Newt 2012, Inc. website. More recently, during the campaign’s pre-caucus
swing through Iowa, the copyrighted song played as Mr. Gingrich made his entrance and exit at
an event in Des Moines; heralded his arrival at an event in Burlington, Iowa; and blared as his
campaign bus rolled into an excavation business in Walford, Iowa. Newt 2012, Inc.’s and Mr.
Gingrich’s use of the copyrighted work was unlicensed and unauthorized.
RESPONSE: In response to the averments contained within enumerated Paragraph 12 of
Plaintiff’s Complaint, Defendants admit that a recording of “Eye of the Tiger” has been included
in background music with other various recordings at certain political events at which Mr.
Gingrich has appeared. Defendants assert that the appropriate PRO license(s) authorized some
or all of the uses alleged by the Plaintiff. Defendants deny the remaining averments contained
within enumerated Paragraph 12 of Plaintiff’s Complaint and demand strict proof thereof.
13.

Newt 2012’s and Mr. Gingrich’s unauthorized public performance, or inducement

of or contribution to the public performance, of the copyrighted work infringes Rude Music’s
copyright. Similarly, the American Conservative Union’s reproduction and distribution of the
video recordings, featuring Mr. Gingrich and “Eye of the Tiger.” is unlicensed and unauthorized,
and also infringes Rude Music’s copyright in the composition.
RESPONSE: Answering solely as to those allegations and averments directed toward
these Defendants, these Defendants deny the averments contained within enumerated Paragraph
13 of Plaintiff’s Complaint as they pertain to these Defendants and demand strict proof thereof.
Defendants are without information or knowledge sufficient to form a belief as to the remaining
averments contained within enumerated Paragraph 13 of Plaintiff’s Complaint.

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14.

Mr. Gingrich’s and Newt 2012, Inc.’s infringement of “Eye of the Tiger” was

willful. Mr. Gingrich is sophisticated and knowledgeable concerning the copyright laws, both as
a private individual, as a business owner, and as a former elected official. According to the
records of the United States Copyright Office, Mr. Gingrich is the author or co-author of over
forty copyrighted works. During his tenure in the United States House of Representatives, the
Copyright Act was extensively amended. Mr. Gingrich is chief executive officer of Gingrich
Productions, Inc., a Washington, D.C. multimedia production company that features the work of
Mr. Gingrich and his wife, Callista Gingrich. Through Gingrich Productions, Inc., they have
produced historical and public policy documentaries, produced photographic essays, written
books, and recorded audio books. According to election disclosure filings, Mr. Gingrich earned
between $500,000 and $1,000,000 from Gingrich Productions, and in a recent interview, he
estimated that he could have sold could be “hundreds of thousands.” Moreover, Newt 2012 also
has a legal team. Finally, at a recent debate in South Carolina, Mr. Gingrich criticized the
proposed Stop Online Piracy Act, stating, “We have a patent office, we have copyright law. If a
company finds that it has genuinely been infringed upon, it has the right to sue..."
RESPONSE: Defendants assert that enumerated Paragraph 14 of Plaintiff’s Complaint
should be stricken for failure to comport with of Fed. R. Civ. P. 10(b). Subject to, and without
waiving the aforestated defense, Defendants deny the averments contained within enumerated
Paragraph 14 of Plaintiff’s Complaint as pled and demand a more definite statement and strict
proof thereof. Defendants deny any allegation of infringement, willful or otherwise.
15.

As a result of the defendants’ willful infringement of Rude Music’s copyright,

Rude Music has been damaged.

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RESPONSE: Defendants deny the averments contained within enumerated Paragraph 15
of Plaintiff’s Complaint.
WHEREFORE, Defendants Newt 2012, Inc and Newt Gingrich deny Plaintiff’s prayer
for relief in its entirety and further deny that Plaintiff is entitled to any relief whatsoever.
Defendants request that this Honorable Court dismiss Plaintiff’s Complaint in its entirety with all
costs cast upon the Plaintiff including, but not limited to, Defendants’ reasonable attorneys’ fees
and costs pursuant to 17 U.S.C. § 505.

FIRST AFFIRMATIVE DEFENSE
Personal jurisdiction is improper in this Court.
SECOND AFFIRMATIVE DEFENSE
Venue is improper in this Court.
THIRD AFFIRMATIVE DEFENSE
Plaintiff’s Complaint fails to add indispensable parties. Plaintiff is affiliated with the
performing rights organization (“PRO”), ASCAP. Performing rights organizations (ASCAP,
BMI and SESAC) issue licenses and pay copyright owners for certain performance uses of
compositions. Some or all or Plaintiff’s claims are barred by the existence of appropriate PRO
licenses. As such, one or more of the PROs are indispensable parties to this action if it is
determined that Plaintiff has standing to assert any of the claims alleged. Additionally, Plaintiff
alleges unauthorized performances of “Eye of the Tiger” at “political conferences and similar
public events.” To the extent that certain individuals and/or entities other than these Defendants
were responsible for securing appropriate PRO licenses for the performance of music at the
“political conferences and similar events” alleged in the Complaint, they would be indispensable

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parties to this action.

Defendants reserve the right to supplement its affirmative defenses

following a reasonable discovery period.

FOURTH AFFIRMATIVE DEFENSE
Some or all of the Plaintiff’s claims against these Defendants are barred pursuant to the
existence of a valid PRO license or licenses.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred, in whole or in part, because the alleged actions hereunder
were the actions of third parties other than the Defendants. Plaintiff’s claims lack sufficient
specificity to determine all third parties potentially responsible for securing appropriate licensing
for the allegedly unauthorized performances claimed against these Defendants. Plaintiff’s claims
are barred in whole or in part as against these Defendants by the existence of the appropriate
PRO license(s). Defendants reserve the right to supplement its affirmative defenses following a
reasonable discovery period.
SIXTH AFFIRMATIVE DEFENSE
Some or all of Plaintiff’s claims as pled may be barred by the applicable Statute of
Limitations.
SEVENTH AFFIRMATIVE DEFENSE
Some or all of Plaintiff’s claims as pled may be barred by the Doctrines of Laches.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff did not exercise due care and did not act reasonably to protect itself or to
mitigate any damages that they may have allegedly sustained by reason of Defendants' alleged
wrongful conduct.

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NINTH AFFIRMATIVE DEFENSE
To the extent any of the acts or omissions alleged in the Complaint occurred, Plaintiff
and/or a co-owner/co-author of the alleged copyright authorized, licensed, or consented to it
expressly, by implication, or by conduct.

Defendants reserve the right to supplement its

affirmative defenses following a reasonable discovery period.
TENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred, in whole or in part, by the equitable doctrines of waiver,
acquiescence and/or estoppel.

ELEVENTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff has failed to meet and plead the statutory
requirements that are conditions precedent to maintaining this action and/or to the recovery of
statutory damages of any kind.
TWELFTH AFFIRMATIVE DEFENSE
The alleged wrongful conduct of the Defendants constitutes fair use.
THIRTEENTH AFFIRMATIVE DEFENSE
The alleged wrongful conduct of Defendants is protected by the First Amendment to the
United States Constitution.

Defendants reserve the right to file such additional affirmative defenses, and/or
supplement the above affirmative defenses, as may be appropriate upon completion of
investigation and discovery.

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WHERFORE, Defendants deny that Plaintiff is entitled to any relief whatsoever,
including, but not limited to, the relief demanded by Plaintiff in paragraphs 1-4 of Plaintiff’s
Prayer for Relief at the conclusion of Plaintiff’s Complaint.
Defendants request to be awarded all attorneys’ fees and costs as well as any and all other
relief which may be appropriate under all applicable statutes and/or as this Court deems just and
appropriate.
JURY DEMAND
Defendants hereby demand a trial by jury of all issues so triable.
Respectfully submitted,
HALL, BOOTH, SMITH & SLOVER, PC
By: /s/ Karl M. Braun
Karl M. Braun, Esq. (TN BPR# 022371)
Admitted Pro Hac Vice on PENDING
Byron K. Lindberg, Esq. (TN BPR 019822)
Admitted Pro Hac Vice on PENDING
611 Commerce Street, Suite 2925
Nashville, TN 37203
[phone]
[phone]
By: /s/ Brian A. Rosenblatt___________________
SmithAmundsen LLC (IL ARDC# 6243772)
150 North Michigan Avenue, Suite 3300
Chicago, Illinois 60601
[phone]
[phone] (Fax)
ATTORNEYS FOR DEFENDANTS,
NEWT 2012, INC. and NEWT GINGRICH
CERTIFICATE OF SERVICE
I hereby certify that on March 27th, 2012, I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF system which will send notification of such filing to all CM/ECF
participants, and I hereby certify that I have mailed by United States Postal Service the document
to any non CM/ECF participants.
/s/ Brian A. Rosenblatt______________________

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