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Hagen Publishing V CBS
Hagen Publishing V CBS
1 to amend this complaint to allege the true names and capacities of these Defendants
2 when the same have been ascertained. Plaintiffs are informed and believes and
3 based thereon alleges that these fictitiously named Defendants are responsible in
4 some manner for the actions and damages alleged herein.
5 6. Plaintiffs are further informed and believe and based thereon allege
6 that Defendants at all times herein alleged were the agents, employees, servants,
7 joint venturers and/or co-conspirators of each of the other remaining Defendants,
8 and that in doing the things herein alleged were acting in the course and scope of
9 such agency, employment, joint venture and/or conspiracy.
10 JURISDICTION AND VENUE
11 7. Subject matter jurisdiction is appropriate to this Court under 28 U.S.C.
12 §§ 1331 and 1338 because this action arises under the Copyright Laws of the
13 United States (17 U.S.C. §§ 101 et seq.), and this Court has supplemental
14 jurisdiction over any related state law claims under 28 U.S.C. § 1367.
15 8. Venue is appropriate under 28 U.S.C. §§ 1391 and 1400 because a
16 substantial part of the events giving rise to the claims for relied occurred in Los
17 Angeles County, and Defendant’s actions caused injury in Los Angeles County
18 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
19 Background
20 9. In the 1950s, Earle Hagen (“Hagen”) and Herbert Spencer (“Spencer”)
21 collaborated as partners on a number of musical works, including the Theme.
22 10. The Theme was registered with the United States Copyright Office on
23 August 12, 1960 (Registration No. EP145114), a true and correct copy of which is
24 attached hereto as Exhibit A, listing Hagen and Spencer as the authors and
25 Larrabee Music, Inc. (“LMI”) as the publisher. LMI was a California corporation
26 owned equally by Spencer and Hagen. Accordingly, Hagen and Spencer were each
27 50% owners of the full 100% writer’s share of the copyright and 50% owners of the
28 full 100% publisher’s share of the copyright.
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 4 of 10 Page ID #:4
1 11. On November 15, 1967, LMI was dissolved, and the copyright to the
2 Theme automatically reverted to Hagen and Spencer by operation of law. See
3 Johnson v. Storix, Inc., No. 3:14-cv-1873-H-BLM, 2015 U.S. Dist. LEXIS 182192,
4 at *12 (S.D. Cal. Nov. 3, 2015) (“Examples of [copyright] transfers by operation of
5 law include corporate mergers, dissolutions, and intestate succession.”).
6 12. On October 11, 1988, Hagen and Spencer submitted a timely renewal
7 registration for the Theme to the Copyright Office (Registration No. RE397511), a
8 true and correct copy of which is attached hereto as Exhibit B.
9 13. On July 15, 1989, both Hagen and Spencer assigned their copyright
10 interests in the Theme to Larrabee Music, a general partnership formed between
11 Hagen and Spencer, and the assignments were recorded with the Copyright Office
12 on April 30, 1990 (Registration Nos. V2535P516 and V2535P517), true and correct
13 copies of which are attached hereto as Exhibit C.
14 14. Spencer passed away in 1992, and Diana Spencer (“Diana”), Spencer’s
15 successor-in-interest, replaced Spencer as a partner in Larrabee Music. In 1995,
16 DRST, Diana’s successor-in-interest, replaced Diana as a partner in Larrabee
17 Music.
18 15. Hagen passed away in 2008, and the Hagen Family Trust (“HFT”),
19 Hagen’s successor-in-interest, replaced Hagen as a partner in Larrabee Music.
20 16. On March 3, 2017, DRST and HFT entered into a settlement
21 agreement with the Hagen Children’s Trust (“HCT”) and The Hagen Decedent’s
22 Trust (“HDT”), whereby DRST, HFT, HCT, and HDT (the “Settling Parties”)
23 agreed to divide ownership of the copyright to the Theme amongst themselves, as
24 well as to dissolve and wind up Larrabee Music (the “Settlement”).
25 17. After entering into the Settlement, but before dissolving Larrabee
26 Music, the Settling Parties (by and through Larrabee Music) collectively assigned
27 the entirety of the copyright to the Theme to Plaintiffs, with each Plaintiff owning
28 50% thereof. A true and correct copy of this assignment is attached hereto as
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 5 of 10 Page ID #:5
1 Exhibit D.
2 18. By virtue of the foregoing, Plaintiffs are the sole and exclusive owners
3 of the extended renewal term of copyright in the Theme.
4 19. Defendants’ claimed entitlement to exploit the Theme as part of The
5 Andy Griffith Show (the “Series”) is based entirely on a March 1, 1978 agreement
6 (the “1978 Agreement”) executed by CBS’s predecessor-in-interest, Viacom
7 Enterprises, Inc. (“Viacom”), and Mayberry Enterprises (“Mayberry”), the previous
8 owners of the Series, whereby Viacom assumed Mayberry’s rights to the Series.
9 However, CBS has produced no evidence that Mayberry had a subsisting license to
10 the Theme, that these rights were transferrable, or that they encompassed home
11 video or any other associated forms of media, such as electronic sell-through, which
12 did not exist when the Series was produced. The 1978 Agreement relied upon by
13 CBS makes no mention of home video or other associated media.1
14 20. In May 2018, Plaintiff DRST discovered that CBS was selling and/or
15 distributing copies of DVDs of the Series, which includes the Theme. DRST asked
16 CBS for copies of any license agreements permitting them to exploit the Theme as
17 part of a DVD offering of the Series. After CBS reviewed its files, it was unable to
18 provide any such license agreements. However, CBS has refused to enter into a new
19 agreement with Plaintiffs to authorize its exploitation of the Theme in additional
20 media or to otherwise cease conducting such unauthorized exploitation. To the
21 contrary, Plaintiffs have since learned that CBS has licensed the Series to digital
22 services such as iTunes and Amazon for distribution and public performance.
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A true and correct copy of the 1978 Agreement is in possession of all parties, but
27 due to a non-disclosure agreement, it cannot be published in the public record as an
attachment to this Complaint.
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 6 of 10 Page ID #:6
1 33. Defendants are causing, and unless enjoined by the Court, will
2 continue to cause, Plaintiffs irreparable harm for which Plaintiffs have no adequate
3 remedy at law. Plaintiffs are entitled to an injunction under 17 U.S.C. § 502
4 prohibiting the continued contributory infringement of the Theme, and an order
5 under 17 U.S.C. § 503 directing the impoundment, destruction or other reasonable
6 disposition of all infringing works.
7 PRAYER FOR RELIEF
8 WHEREFORE, Plaintiffs pray for Judgment as follows:
9 On the First Claim for Direct Copyright Infringement:
10 1. For an award of damages, including actual damages and the disgorgement of
11 any and all gains, profits and advantages obtained by Defendants, as a result
12 of their acts of infringement in an amount according to proof at trial, or,
13 alternatively, for an award of statutory damages in an amount of up to
14 $150,000 for each infringing work, according to proof at the time of trial;
15 2. For a temporary, preliminary and permanent injunction, prohibiting the
16 continued infringement of the Theme during the term of copyright; and
17 3. For Plaintiff’s attorneys’ fees and costs.
18 On the Second Claim for Contributory Copyright Infringement:
19 1. For an award of damages, including actual damages and the disgorgement of
20 any and all gains, profits and advantages obtained by Defendants, as a result
21 of their acts of contributory infringement in an amount according to proof at
22 trial, or, alternatively, for an award of statutory damages in an amount of up
23 to $150,000 for each infringing work, according to proof at the time of trial;
24 2. For a temporary, preliminary and permanent injunction, prohibiting the
25 continued infringement of the Theme during the term of copyright; and
26 3. For Plaintiff’s attorneys’ fees and costs.
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 9 of 10 Page ID #:9
7 By /s Neville L. Johnson
8 Neville L. Johnson
Attorneys for Plaintiffs
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 10 of 10 Page ID #:10