Appalseed Productions, Inc. et al v. Escape Media Group, Inc.

Filing 1

COMPLAINT against Escape Media Group, Inc., filed by Mark Farner, Laurence Weiss, Darius Brooks, Joe Hill Music, LLC, Appalseed Productions, Inc., David Hoffner, R Gant Music Group, Incorporated, Charles Lloyd.Filing fee paid $350. Summons issued. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Civil Cover Sheet, # 20 Summons)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
APPALSEED PRODUCTIONS,
INC., d/b/a APPALSONGS;
CHARLES LLOYD, Individually,
and d/b/a FOREST FARM MUSIC;
DARIUS BROOKS d/b/a FROM D’s
PEN; DAVID HOFFNER d/b/a
FIELDS OF AUTUMN
PUBLISHING; JOE HILL MUSIC,
LLC, d/b/a JOE HILL MUSIC;
LAURENCE WEISS d/b/a
RHINESTONE COWBOY MUSIC
CO.; MARK FARNER d/b/a CRAM
RENRAFF COMPANY; and R
GANT MUSIC GROUP,
INCORPORATED, d/b/a HELLO
DARLIN’ MUSIC;

CASE NO.: __________________
COMPLAINT FOR COPYRIGHT
INFRINGEMENT
JURY DEMAND

Plaintiffs,
v.
ESCAPE MEDIA GROUP, INC.,
Defendant.
COME NOW the Plaintiffs, by and through counsel, and for complaint
against Defendant Escape Media Group, Inc. (hereinafter referred to as “EMG”),
would state and allege as follows:

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A. INTRODUCTION
1. This Complaint is filed and these proceedings are instituted under the
United States Copyright Act, 17 U.S.C. § 101 et seq. for copyright infringement,
contributory copyright infringement and vicarious copyright infringement, and,
injunctive relief and to recover, at Plaintiffs’ election, either actual or statutory
damages, plus discretionary costs, reasonable attorney’s fees and costs for EMG’s
violations of the Act arising from EMG’s willful and systematic copyright
infringement, and facilitation and contribution thereto, through EMG’s business
operations over the Internet.
B. JURISDICTION & VENUE
2. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331
and 1338(a). Venue is proper in this judicial district pursuant to 28 U.S.C. §§
1391(b)(c) and 1400(a). Further, at all times relevant herein, EMG has targeted
business efforts into the State of Tennessee and has entered into contacts/agreements
for EMG’s Internet music services with residents and citizens of the State of
Tennessee, thus further making this District the proper venue.
C. PARTIES
3. Plaintiff Appalseed Productions, Inc., d/b/a Appalsongs is a Virginia
corporation.
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4. Plaintiff Charles Lloyd, Individually and d/b/a Forest Farm Music is a
citizen and resident of California.
5. Plaintiff Darius Brooks, an individual d/b/a From D’s Pen is a citizen
and resident of Illinois.
6. Plaintiff David Hoffner, an individual d/b/a Seven Centers Publishing,
is a citizen and resident of Tennessee.
7. Plaintiff Joe Hill Music, LLC, d/b/a Joe Hill Music is a North Carolina
limited liability company.
8. Plaintiff Laurence Weiss, an individual d/b/a Rhinestone Cowboy
Music Co., is a citizen and resident of Tennessee.
9. Plaintiff Mark Farner, Individually and d/b/a Cram Renraff Company
is a citizen and resident of Michigan.
10. Plaintiff R Gant Music Group, Incorporated, d/b/a Hello Darlin’ Music
is a Tennessee corporation.
11. Upon information and belief Defendant Escape Media Group, Inc. is a
Delaware corporation with its principal place of business in Florida.
D. FACTUAL ALLEGATIONS
12. Defendant owns and operates an internet music subscription, nonsubscription, and music sharing network service located on the World Wide Web at
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www.grooveshark.com, (hereinafter “Grooveshark”).
13. Defendant also owns and operates an internet, non-subscription, music
sharing network service located on the World Wide Web at www.tinysong.com,
(hereinafter “Tinysong”).
14. Grooveshark, in part, provides its customers access to copyrighted
music without having to pay for the music. Defendant’s Music Service website allows
customers to selectively listen to the entire sound recording of a user-selected
copyrighted musical work via “On-Demand Streams”, said term being generally
defined as on-demand real time digital transmissions of sound recordings using socalled streaming technology (also referred to as “Interactive Streams”).
15. Additionally, Grooveshark has various paid subscription levels which
allow subscribers access without ads and allows the subscribers to stream music from
their phones and portable music devices.
16. Grooveshark also allows, encourages, promotes and facilitates users
(subscribers and non-subscribers alike) to “share” music from Grooveshark via e-mail,
distribution through social networking sites such as Facebook, Twitter, etc., and
allows, encourages, promotes and facilitates users to distribute music from
Grooveshark through what is commonly referred to as a “widget”, which allows users
to post any number of songs on another website or internet blog for the purpose of
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distribution of copyrighted music to other internet users from Grooveshark and the
promotion/advertisement of Grooveshark, all at no cost to the user.
17. Further, Grooveshark actively encourages its users and/or customers to
“upload” copyrighted music to the service, which becomes a part of the Grooveshark
database, searchable and able to be streamed and shared by any Grooveshark user for
free. Grooveshark further provides the platform/means to upload copyrighted music to
the Grooveshark database, with no safeguards whatsoever.
18. Tinysong, similarly provides users, at no cost, the ability to stream
copyrighted music on demand and distribute copyrighted music via e-mail and social
networking sites. In fact, Tinysong actively encourages, promotes and facilitates said
distribution of copyrighted music, as the web page prominently displays “Share Any
Song” and that “Tinysong is perfect for Tweetin’ songs” (a reference to the social
networking site “Twitter”).
19. In order to legally transmit, perform, reproduce and deliver any sound
recording embodying any copyrighted musical composition via “On-Demand
Streams”, Defendants must first obtain not only a license for use of the particular
sound recording itself, but also must obtain a license for the underlying musical
composition embodied on each separate sound recording, either via a voluntary license
from the copyright owner or via strict compliance with the statutory compulsory
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licensing provisions of the United States Copyright Act.
20. Absent compliance with said compulsory license provisions of the
Copyright Act for each copyrighted musical composition embodied on each separate
sound recording, prior to distribution, EMG is statutorily barred from obtaining a
compulsory license and may only legally utilize said copyrighted musical compositions
via a voluntary license.
21. Neither EMG, Grooveshark, nor Tinysong is a “service provider” as
defined by 17 U.S.C.§ 512.
22. Plaintiff Appalseed Productions, Inc., d/b/a Appalsongs, is the sole
copyright owner of the musical compositions listed on the attached Exhibit “A”, and
holder of the exclusive rights secured by 17 U.S.C. § 106.
23. The copyrighted musical compositions listed on said Exhibit “A” are
embodied on the sound recordings listed on the attached Exhibit “B”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “B” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
24. Plaintiff Charles Lloyd, Individually and d/b/a Forest Farm Music, is
the sole copyright owner of the musical compositions listed on the attached Exhibit
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“C”, and holder of the exclusive rights secured by 17 U.S.C. § 106.
25. The copyrighted musical compositions listed on said Exhibit “C” are
embodied on the sound recordings listed on the attached Exhibit “D”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “D” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
26. Plaintiff Darius Brooks, d/b/a From D’s Pen, is the sole copyright
owner of the musical compositions listed on the attached Exhibit “E”, and holder of
the exclusive rights secured by 17 U.S.C. § 106.
27. The copyrighted musical compositions listed on said Exhibit “E” are
embodied on the sound recordings listed on the attached Exhibit “F”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “F” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
28. Plaintiff David Hoffner, d/b/a Fields of Autumn Publishing, is the sole
or joint copyright owner of the musical compositions listed on the attached Exhibit
“G”, and holder of the exclusive rights secured by 17 U.S.C. § 106.
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29. The copyrighted musical compositions listed on said Exhibit “G” are
embodied on the sound recordings listed on the attached Exhibit “H”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “H” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
30. Plaintiff Joe Hill Music, LLC, d/b/a Joe Hill Music, is the sole
copyright owner of the musical compositions listed on the attached Exhibit “I”, and
holder of the exclusive rights secured by 17 U.S.C. § 106.
31. The copyrighted musical compositions listed on said Exhibit “I” are
embodied on the sound recordings listed on the attached Exhibit “J”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “J” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
32. Plaintiff Laurence Weiss, d/b/a Rhinestone Cowboy Music Co., is the
sole copyright owner of the musical compositions listed on the attached Exhibit “K”,
and holder of the exclusive rights secured by 17 U.S.C. § 106.
33. The copyrighted musical compositions listed on said Exhibit “K” are
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embodied on the sound recordings listed on the attached Exhibit “L”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “L” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
34. Plaintiff Mark Farner, d/b/a Cram Renraff Company, is the sole
copyright owner of the musical compositions listed on the attached Exhibit “M”, and
holder of the exclusive rights secured by 17 U.S.C. § 106.
35. The copyrighted musical compositions listed on said Exhibit “M” are
embodied on the sound recordings listed on the attached Exhibit “N”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “N” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
36. Plaintiff R Gant Music Group Incorporated, d/b/a Hello Darlin’ Music,
is the sole copyright owner of the musical compositions listed on the attached Exhibit
“O”, and holder of the exclusive rights secured by 17 U.S.C. § 106.
37. The copyrighted musical compositions listed on said Exhibit “O” are
embodied on the sound recordings listed on the attached Exhibit “P”, each of which is
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available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “P” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition owned by this Plaintiff).
38. Plaintiffs Appalseed Productions, Inc. d/b/a Appalsongs and Joe Hill
Music, LLC d/b/a Joe Hill Music, are jointly the sole copyright owners of the musical
compositions listed on the attached Exhibit “Q”, and joint holders of the exclusive
rights secured by 17 U.S.C. § 106.
39. The copyrighted musical compositions listed on said Exhibit “Q” are
embodied on the sound recordings listed on the attached Exhibit “R”, each of which is
available on Grooveshark and Tinysong for all available uses/distributions referenced
above. (said Exhibit “R” lists each recording’s song title, artist’s name, and/or album
title as they appear on Grooveshark and Tinysong and the copyright registration
number of the embodied musical composition jointly-owned by these two Plaintiffs).
40. Each of copyrighted musical compositions listed on Exhibits A, C, E,
G, I, K, M, O and Q, attached hereto, have been registered with the United States
Copyright Office, as evidenced by the corresponding Copyright Registration numbers
for each composition listed on said exhibits.
41. Without Plaintiffs’ authorization, license or permission, Defendant has
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copied, displayed, performed and distributed to the public, via on-demand streams
through Grooveshark and Tinysong, the sound recordings (embodying Plaintiffs’
copyrighted musical compositions) referenced on Exhibits B, D, F, H, J, L, N, P and R,
attached hereto.
42. Defendant neither sought nor obtained a license, permission or
authorization from Plaintiffs, or any agent of Plaintiffs, nor did Defendant procure the
aforementioned statutory compulsory license, prior to copying Plaintiffs’ copyrighted
musical compositions onto Defendant’s computer server(s), making said copyrighted
musical compositions available to the public on Defendant’s music services,
performing said musical compositions through Defendant’s music services and
distributing said copyrighted musical compositions through Defendant’s music
services.
43. Defendant continues to copy, display, perform and distribute additional
sound recordings embodying Plaintiffs’ copyrighted musical compositions to the
public via Defendant’s music services, without a license, authorization or permission
from Plaintiffs, thereby further infringing Plaintiffs’ exclusive rights.
44. Defendant had knowledge at the time it copied, displayed, performed
and distributed recordings embodying Plaintiffs’ copyrighted musical compositions,
that Defendant was required to obtain authorization via a license from Plaintiffs or
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procure the aforementioned statutory compulsory license prior to any use of Plaintiffs’
copyrighted musical compositions.
45. Defendant further had knowledge that it is barred from obtaining a
statutory compulsory license, having failed to send proper notice prior to distribution.
46. Defendant has made the recordings embodying Plaintiffs’ copyrighted
musical compositions available to the general public without any compensation to
Plaintiffs.
47. Defendant has knowledge, via the Grooveshark widgets and
uploading, and sharing capabilities of Grooveshark and Tinysong, provided by
Defendant, that infringing activities are taking place through Grooveshark and
Tinysong.
48. Defendant has further fascilitated, encouraged and contributed to its
subscribing and non-subscribing users’ infringement of Plaintiffs’ copyrighted musical
compositions via the Grooveshark widgets and uploading, and sharing capabilities of
Grooveshark and Tinysong, all as described herein.
49. Defendant has derived direct and substantial financial benefits from
the infringements of Plaintiffs’ copyrighted musical compositions by Grooveshark and
Tinysong’s users. Defendant, by allowing the infringing activities of its users,
promotes and advertises Grooveshark and Tinysong, driving users to the sites
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(resulting in increased advertising revenues) and increasing the Defendant’s
subscription base.
50. Defendant has the ability to control the infringement of Plaintiffs’
copyrighted musical compositions by Grooveshark and Tinysong’s users.
E. CAUSES OF ACTION
FIRST CAUSE OF ACTION
(Copyright Infringement)
51. Plaintiffs hereby adopt, reallege and incorporate by reference the
allegations contained in Paragraphs 1 through 56 above.
52. Each instance whereby each separate sound recording embodying a
copyrighted musical composition owned by Plaintiffs was copied, displayed,
performed and/or distributed by Defendant via Grooveshark and/or Tinysong, whether
streaming, uploading or sharing, constitutes a separate act of copyright infringement
and a separate violation of 17 U.S.C. 101, et seq.
53. Each of Defendant’s acts of copyright infringement referenced herein
were willful within the meaning of 17 U.S.C. 101, et seq.
54. Plaintiffs have suffered economic damage and irreparable harm as a
result of Defendant’s continuing acts of infringement, and unless and until Defendant’s
conduct is enjoined by this Court, Defendant will continue to cause irreparable injury

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that cannot fully be compensated for or measured in money, and Plaintiffs are
accordingly entitled to an injunction pursuant to 17 U.S.C. § 502 prohibiting further
infringement of their exclusive rights under the Copyright Act.
55. Plaintiffs are entitled to, at their election, either their actual damages
and Defendant’s profits from the infringing activities described herein, or, in the
alternative, statutory damages pursuant to 17 U.S.C. § 101, et seq.
56. Plaintiffs are further entitled to their attorney fees and costs pursuant to
17 U.S.C. § 505.
SECOND CAUSE OF ACTION
(Contributory Copyright Infringement)
57. Plaintiffs hereby adopt, reallege and incorporate by reference the
allegations contained in Paragraphs 1 through 56 above.
58. Defendant’s users and subscribers are actively infringing Plaintiff’s
copyrighted musical compositions, as set forth herein, by uploading, streaming and
sharing recordings embodying said compositions through Grooveshark and Tinysong,
which infringes upon Plaintiffs’ exclusive rights secured by 17 U.S.C. § 106.
59. Defendant has explicit and constructive knowledge that said
infringements are taking place and actively induces, facilitates, causes and materially
contributes to said infringements.

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60. As a result of the foregoing, Defendant is liable for contributorily
infringing Plaintiffs’ copyrighted musical compositions, in violation of Sections 106
and 501 of the Copyright Act.
61. Each instance whereby each separate sound recording embodying a
copyrighted musical composition owned by Plaintiffs was copied, displayed,
performed and/or distributed by users of Grooveshark and/or Tinysong, whether
streaming, uploading or sharing, constitutes a separate act of copyright infringement
and a separate violation of 17 U.S.C. 101, et seq., for which Defendant is liable.
62. Each act of copyright infringement referenced herein was willful
within the meaning of 17 U.S.C. 101, et seq.
63. Plaintiffs have suffered economic damage and irreparable harm as a
result of the continuing acts of infringement referenced herein, and unless and until
Defendant’s conduct is enjoined by this Court, Defendant will continue to cause
irreparable injury that cannot fully be compensated for or measured in money, and
Plaintiffs are accordingly entitled to an injunction pursuant to 17 U.S.C. § 502
prohibiting further infringement of their exclusive rights under the Copyright Act.
64. Plaintiffs are entitled to, at their election, either their actual damages
and Defendant’s profits from the infringing activities described herein, or, in the
alternative, statutory damages pursuant to 17 U.S.C. § 101, et seq.
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65. Plaintiffs are further entitled to their attorney fees and costs pursuant to
17 U.S.C. § 505.
THIRD JOINT CAUSE OF ACTION
(Vicarious Copyright Infringement)
66. Plaintiffs hereby adopt, reallege and incorporate by reference the
allegations contained in Paragraphs 1 through 56 above.
67. Defendant’s users and subscribers are actively infringing Plaintiffs’
copyrighted musical compositions, as set forth herein, by uploading, streaming and
sharing recordings embodying said compositions through Grooveshark and Tinysong,
which infringes upon Plaintiffs’ exclusive rights secured by 17 U.S.C. § 106.
68. Defendant has derived direct and substantial financial benefits from
the infringements of Plaintiffs’ copyrighted musical compositions by Grooveshark and
Tinysong’s users, as described herein.
69. Defendant has the legal right and actual ability to supervise, control
and prevent the infringing activities that occur through Grooveshark and Tinysong, but
has failed and or refused to exercise any control over the infringing activities.
70. As a result of the foregoing, Defendant is liable for vicariously
infringing Plaintiffs’ copyrighted musical compositions, in violation of Sections 106
and 501 of the Copyright Act.

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71. Each instance whereby each separate sound recording embodying a
copyrighted musical composition owned by Plaintiffs was copied, displayed,
performed and/or distributed by users of Grooveshark and/or Tinysong, whether
streaming, uploading or sharing, constitutes a separate act of copyright infringement
and a separate violation of 17 U.S.C. 101, et seq., for which Defendant is liable.
72. Each act of infringement referenced herein was willful within the
meaning of 17 U.S.C. 101, et seq.
73. Plaintiffs have suffered economic damage and irreparable harm as a
result of the continuing acts of infringement referenced herein, and unless and until
Defendant’s conduct is enjoined by this Court, Defendant will continue to cause
irreparable injury that cannot fully be compensated for or measured in money, and
Plaintiffs are accordingly entitled to an injunction pursuant to 17 U.S.C. § 502
prohibiting further infringement of their exclusive rights under the Copyright Act.
74. Plaintiffs are entitled to, at their election, either their actual damages
and Defendant’s profits from the infringing activities described herein, or, in the
alternative, statutory damages pursuant to 17 U.S.C. § 101, et seq.
75. Plaintiffs are further entitled to their attorney fees and costs pursuant to
17 U.S.C. § 505.

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F. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray for judgment against the
Defendant as follows:
1. On all Counts, for such equitable relief as is necessary to prevent or
restrain infringement of Plaintiffs’ copyrights, including a permanent injunction
requiring that Defendant and its agents, servants, employees, officers, directors,
attorneys, successors, assigns, licensees, and all others in active concert or participation
with any of them cease infringing, or causing, aiding, enabling, facilitating,
encouraging, promoting, inducing, or materially contributing to or participating in the
infringement of any of Plaintiffs’ copyrights or exclusive rights protected by the
Copyright Act or common law (whether now in existence or hereafter created),
including, without limitation, the compositions referenced on the Exhibits attached
hereto.
2. On Counts I, II and III, an award to Plaintiffs, at their election, of
either (i) actual damages and profits derived by Defendant as a result of the infringing
activities described herein, pursuant to 17 U.S.C. § 504(b), or (ii) statutory damages in
the maximum amount of $150,000 per each act of infringement of Plaintiffs’
copyrighted works, pursuant to 17 U.S.C. § 504(c)
3. For Plaintiffs’ attorney fees.
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4. Discretionary costs;
5. For such other and further relief as this Court deems appropriate.
6. Plaintiffs demand a jury.
Respectfully Submitted,
GRAUBERGER, GREEN & ASSOCIATES,
PLLC

/s/ Stephen E. Grauberger
Stephen E. Grauberger #23652
Derrick H. Green #25412
2612 N. Mt. Juliet Rd.
Mt. Juliet, TN 37122
TEL: [phone]
FAX: [phone]
[e-mail]
[e-mail]

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