Word Music, LLC et al v. Priddis Music, Inc. et al

Filing 59

Word Music, LLC et al v. Priddis Music, Inc. et al

Doc. 59

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE, TENNESSEE WORD MUSIC, LLC, a Tennessee Limited Liability company, DAYSPRING MUSIC, LLC., a Tennessee Limited Liability Company, WORDSPRING MUSIC, LLC., a Tennessee Limited Liability company, UNICHAPPELL MUSIC, INC., a Delaware corporation, CHAPPELL & COL, INC. a Delaware corporation, COTILLION MUSIC, INC., a Delaware Corporation, RIGHTSONG MUSIC, INC., a Delaware Corporation, RIGHTSONG MUSIC, INC., a Delaware Corporation, WALDEN MUSIC, INC., a New York Corporation, WARNER/TAMERLANE PUBLISHING CORP., a California corporation, and WB MUSIC CORP., a California corporation, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) PRIDDIS MUSIC, INC., a Nevada ) corporation, RICHARD L. PRIDDIS, ) individually, PROSOUND KARAOKE ) LTD., a United Kingdom corporation, ) MEDIOSTREAM, INC., a California ) corporation d/b/a "K SUPERSTAR", D.J. ) MILLER MUSIC DISTRIBUTORS, INC., a ) Colorado corporation, d/b/a "PROSING", ) and DALE S. MILLER, individually. ) ) ) Defendants. )

CIVIL ACTION NO. 3:07-00502 JURY DEMANDED

ANSWER OF MEDIOSTREAM, INC. d/b/a "K SUPERSTAR" Defendant Mediostream, Inc. (hereinafter "Mediostream"), by and through counsel, hereby respectfully responds to Plaintiffs' Complaint as follows:

Case 3:07-cv-00502

Document 59

Filed 07/26/2007

Page 1 of 12
Dockets.Justia.com

1.

The allegations in the first sentence of paragraph 1 of the Complaint are admitted

to the extent that the Plaintiff alleges copyright infringement. The allegations in the second sentence of paragraph 1 of the Complaint are denied. 2. 3. The allegations in paragraph 2 of the Complaint are denied. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations charged throughout paragraph 3 of the Complaint and therefore denies the same. 4. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 4 of the Complaint and therefore denies the same. 5. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 5 of the Complaint and therefore denies the same. 6. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 6 of the Complaint and therefore denies the same. 7. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 7 of the Complaint and therefore denies the same. 8. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 8 of the Complaint and therefore denies the same. 9. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 9 of the Complaint and therefore denies the same. 10. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 10 of the Complaint and therefore denies the same. 11. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 11 of the Complaint and therefore denies the same.

Case 3:07-cv-00502

2 Document 59

Filed 07/26/2007

Page 2 of 12

12.

Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 12 of the Complaint and therefore denies the same. 13. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 13 of the Complaint and therefore denies the same. 14. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 14 of the Complaint and therefore denies the same. 15. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in the first sentence of paragraph 15 of the Complaint and demands strict proof thereof. Mediostream denies the remaining allegations of paragraph 15 of the Complaint. 16. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 16 of the Complaint and therefore denies the same. 17. The allegations in the first sentence of paragraph 17 of the Complaint are

admitted. The remaining allegations in paragraph 17 of the Complaint are denied. 18. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 18 of the Complaint and therefore denies the same. 19. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 19 of the Complaint and therefore denies the same. 20. Mediostream contests this Court's jurisdiction over this matter pursuant to the

doctrine of prior suit pending. Mediostream also denies the remaining allegations in paragraph 20 of the Complaint. FACTUAL BACKGROUND 21. Upon information and belief, the allegations in the first and second sentence of

paragraph 21 of the Complaint are admitted. Mediostream is without knowledge or information 3 Document 59

Case 3:07-cv-00502

Filed 07/26/2007

Page 3 of 12

sufficient to form a belief as to the truth of the allegation in the last sentence of paragraph 21 of the Complaint and therefore denies the same. 22. admitted. 23. 24. The allegations in paragraph 23 of the Complaint are denied. The allegations in paragraph 24 of the Complaint are based upon legal Upon information and belief, the allegations in paragraph 22 of the Complaint are

conclusions and not directed specifically at Mediostream, therefore no response is required. 25. The allegations in paragraph 25 of the Complaint are not directed specifically at

Mediostream and require no response. 26. The allegations in paragraph 26 are not directed specifically at Mediostream and

require no response. ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 27. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 27 of the Complaint and therefore denies the same. 28. Mediostream is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 28 of the Complaint and therefore denies the same. 29. 30. 31. 32. The allegations in paragraph 29 of the Complaint are denied. The allegations in paragraph 30 of the Complaint are denied. The allegations in paragraph 31 of the Complaint are denied. The allegations in paragraph 32 of the Complaint are denied.

Case 3:07-cv-00502

4 Document 59

Filed 07/26/2007

Page 4 of 12

FIRST CLAIM FOR RELIEF COPYRIGHT INFRINGEMENT 17 U.S.C. §§101, ET SEQ. (Direct Copyright Infringement vs. All Defendants) 33. In response to the paragraph 33, Mediostream adopts and incorporates by

reference its responses to the allegations in paragraphs 1 through 32 of the Complaint. 34. 35. 36. The allegations in paragraph 34 of the Complaint are denied. The allegations in paragraph 35 of the Complaint are denied. The allegations in paragraph 36 of the Complaint are denied.

Mediostream denies that Plaintiffs are entitled to any of the relief sought in the prayer for relief on page ten of the Complaint including subparts (a) through (m) as set forth on pages eleven and twelve of the Complaint. SECOND CLAIM FOR RELIEF COPYRIGHT INFRINGEMENT 17 U.S.C. §§ 101, ET. SEQ. (Contributory Infringement) 37. In response to the paragraph 37, Mediostream adopts and incorporates by

reference its responses to the allegations in paragraphs 1 through 36 of the Complaint. 38. 39. 40. The allegations in paragraph 38 of the Complaint are denied. The allegations in paragraph 39 of the Complaint are denied. The allegations in paragraph 40 of the Complaint are denied.

Mediostream denies that Plaintiffs are entitled to any of the relief sought in the prayer for relief on page fourteen of the Complaint including subparts (a) through (m) as set forth on pages fourteen through sixteen of the Complaint.

Case 3:07-cv-00502

5 Document 59

Filed 07/26/2007

Page 5 of 12

THIRD CLAIM FOR RELIEF COPYRIGHT INFRINGEMENT 17 U.S.C. §§101, ET SEQ. (Vicarious Infringement) 41. In response to the paragraph 41, Mediostream adopts and incorporates by

reference its responses to the allegations in paragraphs 1 through 40 of the Complaint. 42. 43. 44. The allegations in paragraph 42 of the Complaint are denied. The allegations in paragraph 43 of the Complaint are denied. The allegations in paragraph 44 of the Complaint are denied.

Mediostream denies that Plaintiffs are entitled to any of the relief sought in the prayer for relief on page seventeen and eighteen of the Complaint including subparts (a) through (m) as set forth on pages eighteen through twenty of the Complaint. FOURTH CLAIM FOR RELIEF WILLFUL COPYRIGHT INFRINGEMENT 17 U.S.C. §504(c)(2) 45. In response to the paragraph 45, Mediostream adopts and incorporates by

reference its responses to the allegations in paragraphs 1 through 45 of the Complaint. 46. 47. 48. The allegations in paragraph 46 of the Complaint are denied. The allegations in paragraph 47 of the Complaint are denied. The allegations in paragraph 48 of the Complaint are denied.

Mediostream denies that Plaintiffs are entitled to any of the relief sought in the prayer for relief on page twenty one of the Complaint including subparts (a) through (m) as set forth on pages twenty one through twenty three of the Complaint.

Case 3:07-cv-00502

6 Document 59

Filed 07/26/2007

Page 6 of 12

FIFTH CLAIM FOR RELIEF UNFAIR COMPETITION 49. In response to misnumbered paragraph 41, Mediostream adopts and incorporates

by reference its responses to the allegations in paragraphs 1 through 48 of the Complaint. 50. 51. 52. The allegations in misnumbered paragraph 42 of the Complaint are denied. The allegations in misnumbered paragraph 43 of the Complaint are denied. The allegations in misnumbered paragraph 44 of the Complaint are denied.

Mediostream denies that Plaintiffs are entitled to any of the relief sought in the prayer for relief on pages twenty four and twenty five of the Complaint including subparts (a) and (b) as set forth on page twenty five of the Complaint. 53. Any and all allegations not specifically admitted are hereby denied.

For further response to the Complaint, and as separate, affirmative defenses, Mediostream would show the Court as follows: First Affirmative Defense 1. The Complaint, and each and every count therein, fails to state facts sufficient to

constitute a claim upon which relief can be granted. Second Affirmative Defense 2. Plaintiffs' action is barred by the doctrine of prior suit pending as Mediostream

has previously filed an action in California which relates to the issues raised in Plaintiffs' Complaint and such suit is currently pending in California. Third Affirmative Defense 3. Plaintiffs' claims are barred, precluded, or limited, in whole or in part, by the

applicable statute of limitations.

Case 3:07-cv-00502

7 Document 59

Filed 07/26/2007

Page 7 of 12

Fourth Affirmative Defense 4. Plaintiffs' claims are barred, precluded, or limited by the doctrine of laches

because they have unreasonably delayed in bringing in this action to the presumed or actual prejudice of Defendant. Fifth Affirmative Defense 5. Plaintiffs' claims are barred, precluded, or limited, in whole or in part, by the

doctrine of waiver. Sixth Affirmative Defense 6. Plaintiffs' are estopped by their own acts, conduct, or omissions, from obtaining

relief against the Defendant. Seventh Affirmative Defense 7. To the extent that any acts or omissions alleged in the Complained occurred,

Plaintiffs authorized, licensed, or consented to it, expressly, by implication, or by conduct. Eighth Affirmative Defense 8. Upon information and belief, Plaintiffs do not own some or all of the copyrights

at issue in this action. Plaintiffs' claims are barred, precluded, or limited, in whole or in part, by lack of standing. Ninth Affirmative Defense 9. Upon information and belief, Plaintiffs have failed to comply with the

registration, deposit, and/or other statutory requirements that are conditions precedent to maintaining this action and/or to the recovery of statutory of statutory damages. Tenth Affirmative Defense 10. To the extent any harm to Plaintiffs occurred, which Defendant denies, such harm

was proximately caused, if at all, by persons or entities other than Defendant. Such persons or

Case 3:07-cv-00502

8 Document 59

Filed 07/26/2007

Page 8 of 12

entities are either solely responsible for such acts and conduct or, in the alternative, Mediostream is entitled to be defended and indemnified by such persons or entities. Eleventh Affirmative Defense 11. Plaintiffs' claims are barred, precluded, or limited, in whole or in part, by accord

and satisfaction. Twelfth Affirmative Defense 12. Plaintiffs' claims are barred, precluded, or limited, in whole or in part, by the

prior settlement of such claims. Thirteenth Affirmative Defense 13. Plaintiffs' claims are barred, precluded, or limited, in whole or in part, by the

prior release of such claims. Fourteenth Affirmative Defense 14. Some of the claims in the Complaint are barred, precluded, or limited as a result

of one or more of the Plaintiffs failing to comply with or perform a condition precedent to recovery. Fifteenth Affirmative Defense 15. Upon information and belief, the works that Plaintiffs claim are infringing were

independently created. Sixteenth Affirmative Defense 16. To the extent that any elements from any of the allegedly infringing works were

used, such use constituted fair use. Seventeenth Affirmative Defense 17. Plaintiffs' claims fail to the extent that Plaintiffs' alleged copyrighted works are

neither original nor protectable expression.

Case 3:07-cv-00502

9 Document 59

Filed 07/26/2007

Page 9 of 12

Eighteenth Affirmative Defense 18. Plaintiffs' claims are barred, precluded, or limited insofar as any allegation of

alleged copyrighted material constitute de minimis use thereof. Nineteenth Affirmative Defense 19. To the extent that any copyrightable elements from any of the allegedly infringed

works were used in allegedly infringing works, such copyrights are enforceable and are null and void due to abandonment. Twentieth Affirmative Defense 20. To the extent that any of the allegedly infringing works are found to have

infringed on Plaintiffs' copyrights, such infringement occurred without Mediostream's knowledge. Twenty First Affirmative Defense 21. If Plaintiffs are entitled to any monetary relief, which Mediostream denies,

Plaintiffs' claims are limited by any applicable setoffs. WHEREFORE, Defendant prays as follows: 1. 2. 3. That the Complaint and each count therein be dismissed with prejudice; That Plaintiffs' take nothing by their Complaint; That Defendant be awarded their attorney's fees incurred in this action pursuant to

17 U.S.C Section 505; 4. 5. 6. That Defendant be awarded their costs incurred herein; For a jury to try this cause; and For such other relief as this Court may deem just and proper.

Case 3:07-cv-00502

10 Document 59 Filed 07/26/2007

Page 10 of 12

Respectfully submitted, /s/ James C. Bradshaw III__________ James C. Bradshaw III (#13170) Michael D. Hornback (#22128) WYATT, TARRANT & COMBS 2525 West End Avenue, Suite 1500 Nashville, Tennessee 37203-1423 615.244.0020 [e-mail] [e-mail] J. Owen Borum Timothy J. O'Neill CAPLAN & EARNEST, LLC. 1800 Broadway, Suite 200 Boulder, Colorado 80302-5289 303.443.8010 Counsel for Mediostream, Inc.

Case 3:07-cv-00502

11 Document 59 Filed 07/26/2007

Page 11 of 12

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served upon the following by electronic mail via the Electronic Filing System this 26th day of July, 2007: Timothy L. Warnock Bowen, Riley Warnock & Jacobson, PLC 1906 West End Avenue Nashville, Tennessee 37203 Paul Harrison Stacy 7225 North Spring Gulch Road P.O. Box 4157 Jackson, Wyoming 83001 Attorneys for Plaintiffs

Jeffrey Todd Goodson Law Office of John Cobb Rochford, PLLC 2200 Abbott Martin Road, Suite 201 Nashville, Tennessee 37215 Attorney for Richard L. Priddis, Priddis Music, Inc. and Prosound Karaoke LTD /s/ James C. Bradshaw III James C. Bradshaw III
45310586.2

Case 3:07-cv-00502

12 Document 59 Filed 07/26/2007

Page 12 of 12