Waite v. UMG

Case 1:19-cv-01091-LAK Document 150 Filed 04/15/22 Page 1 of 51
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
:
JOHN WAITE, an individual; KASIM SULTON,
:
an individual; SUSAN STRAW HARRIS p/k/a
: No. 1:19-cv-01091(LAK)
SYD STRAW, an individual; LEONARD
:
GRAVES PHILLIPS, an individual; STAN
:
SOBOL a/k/a STAN LEE, an individual; STEVE
WYNN, an individual; DENNIS MEHAFFEY, : ORAL ARGUMENT REQUESTED
p/k/a DENNIS DUCK, an individual; and JOEL :
DAVID PELLISH, p/k/a DAVE PROVOST, an :
individual; and on behalf of all others similarly :
situated, :
:
Plaintiffs, :
v. :
:
UMG RECORDINGS, INC., a Delaware :
corporation doing business as Universal :
Music Group; and CAPITOL RECORDS, LLC, :
a Delaware limited liability company; :
:
Defendants. :
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT

OF THEIR MOTION FOR CLASS CERTIFICATION
BLANK ROME LLP

Ryan E. Cronin
Roy W. Arnold (admitted pro hac vice)
Gregory M. Bordo (admitted pro hac vice)
David M. Perry (admitted pro hac vice)
Heidi G. Crikelair
Jillian M. Taylor (admitted pro hac vice)
1271 Avenue of the Americas
New York, NY 10020
Telephone: (212) 885-5000
COHEN MUSIC LAW

Evan S. Cohen (admitted pro hac vice)
Maryann R. Marzano (admitted pro hac vice)
104 West Anapamu Street, Suite K
Santa Barbara, CA 93101-3126
Telephone: (805) 837-0100
Counsel for Plaintiffs
154498.00601/128556302v.8
TABLE OF CONTENTS
I. INTRODUCTION ...................................................................................................... 1
II. OVERVIEW OF SECTION 203 AND ITS UNDERLYING POLICIES..................... 4
III. STATEMENT OF FACTS........................................................................................... 6
A. Kasim Sulton .................................................................................................. 6
B. The Dickies (Leonard Graves Phillips and Stan Sobol) ................................ 8
C. Dream Syndicate (Steve Wynn, Dennis Mehaffey and Joel David
Pellish) .......................................................................................................... 11
D. Susan Straw Harris p/k/a Syd Straw........................................................... 15
E. Class Members’ Evidence of Defendants’ Uniform Disregard of the
Vested Terminations .................................................................................... 17
F. Defendants’ Fictitious and/or Erroneous “Work Made for Hire”
Defense ......................................................................................................... 19
IV. ARGUMENT: THE COURT SHOULD GRANT PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION AND CERTIFY BOTH PROPOSED CLASSES . ........... 21
A. Applicable Legal Standard ........................................................................... 21
B. The Proposed Classes Satisfy the Rule 23(a) Requirements. ..................... 23
1. The Proposed Classes Are So Numerous That Joinder Is
Impracticable. ................................................................................... 23
2. Common Questions of Law and Fact Exist. ..................................... 24
3. Plaintiffs Have Claims Typical of the Classes’ Claims. .................... 30
4. Plaintiffs and Counsel Will Adequately Represent the
Classes. .............................................................................................. 32
C. The Requirements of Rule 23(b)(3) Are Met. ............................................. 36
1. Common Questions of Law or Fact Predominate as to
Plaintiffs’ Claims. .............................................................................. 37
2. A Class Action Is the Superior and Most Efficient Method for
Adjudicating This Controversy. ........................................................ 40
D. Certification of a Class for Final Injunctive and Corresponding
Declaratory Relief Under Rule 23(b)(2) Is Appropriate............................. 41
V. CONCLUSION ......................................................................................................... 43
-i-
154498.00601/128556302v.8
TABLE OF AUTHORITIES
Page(s)
Cases
Adames v. Mitsubishi Bank, Ltd.,

133 F.R.D. 82 (E.D.N.Y. 1989)..................................................................................... 43
Amchem Prods. v. Windsor,

521 U.S. 591, 117 S.Ct. 2231 (1997) ..................................................................... 38, 42
American Pipe & Constr. Co. v. Utah,

414 U.S. 538, 94 S.Ct. 756 (1974)................................................................................ 42
Aymes v. Bonelli,
980 F.2d 857 (2d Cir. 1992) ......................................................................................... 20
Baldwin v. EMI Feist Catalog, Inc.,

805 F.3d 18 (2d Cir. 2015) ....................................................................................... 5, 29
Ballas v. Tedesco,
41 F. Supp. 2d 531 (D.N.J. 1999) ................................................................................ 21
Bolanos v. Norwegian Cruise Lines Ltd.,

212 F.R.D. 144 (S.D.N.Y. 2002) ................................................................................... 25
Brown v. Giuliani,
No. 98 Civ 7743, 2000 WL 869491 (S.D.N.Y. June 29, 2000).................................... 33
Comcast Corp. v. Behrend,

569 U.S. 27, 133 S.Ct. 1426 (2013).............................................................................. 23
Comer v. Cisneros,
37 F.3d 775 (2d Cir. 1994) ........................................................................................... 44
Community for Creative Non-Violence v. Reid,

490 U.S. 730, 109 S.Ct. 2166 (1989) ........................................................................... 20
Cromer Fin. Ltd. v. Berger,

205 F.R.D. 113 (S.D.N.Y. 2001) ................................................................................... 42
David v. Showtime/The Movie Channel, Inc.,

697 F. Supp. 752 (S.D.N.Y. 1988) .......................................................................... 26, 41
Donaldson Pub. Co. v. Bregman, Vocco & Conn, Inc.,

375 F.2d 639 (2d Cir. 1967) ......................................................................................... 29
Fidelis Corp. v. Litton Indus., Inc.,

293 F. Supp. 164 (S.D.N.Y. 1968) ................................................................................ 24
-ii-
154498.00601/128556302v.8
Flo & Eddie Inc. v. Sirius XM Radio Inc.,

No. CV 13-5693 PSG, 2014 WL 4725382 (C.D. Cal. Sept. 22, 2014) ......................... 36
Fogarazzo v. Lehman Bros., Inc.,

232 F.R.D. 176 (S.D.N.Y. 2005) ................................................................................... 32
Foley v. Transocean Ltd.,

272 F.R.D. 126 (S.D.N.Y. 2011) ................................................................................... 33
Fred Fisher Music Co. v. M. Witmark & Sons,

318 U.S. 643, 63 S. Ct. 773 (1943) ............................................................................... 30
Guippone v. BH S&B Holdings, LLC,

No. 09 Civ 1029, 2011 WL 1345041 (S.D.N.Y. Mar. 30, 2011).................................. 33
Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York,

201 F.R.D. 326 (S.D.N.Y. 2001) ................................................................................... 43
Horror Inc. v. Miller,

335 F. Supp. 3d 273 (D. Conn. 2018), aff’d, 15 F.4th 232 (2d Cir. 2021).............. 6, 29
In re Initial Pub. Offerings Secs. Litig.,

471 F.3d 24 (2d Cir. 2006) ........................................................................................... 23
Johansen v. Sony Music Ent. Inc.,

No. 19 Civ. 1094, 2020 WL 1529442 (S.D.N.Y. Mar. 31, 2020)................................... 6
Johansen v. Sony Music Entertainment

case pending.................................................................................................................... 1
Korn v. Franchard Corp.,

456 F.2d 1206 (2d Cir. 1972) ....................................................................................... 24
Lee v. ABC Carpet & Home,

236 F.R.D. 193 (S.D.N.Y. 2006) ................................................................................... 37
Leiber v. Bertelsmann AG (In re Napster, Inc. Copyright Litig.),

No. C MDL-00-1369, 2005 WL 1287611 (N.D. Cal. June 1, 2005) ........................... 40
Marascalco v. Fantasy, Inc.,

953 F.2d 469 (9th Cir. 1991), cert. denied, 504 U.S. 931, 112 S.Ct.
1997 (1992) ................................................................................................................... 37
Marisol A. v. Giuliani,
126 F.3d 372 (2d Cir. 1997) ............................................................................. 32, 34, 44
Marvel Characters, Inc. v. Simon,

310 F.3d 280 (2d Cir. 2002) ............................................................................. 22, 29, 31
Meyer v. U.S. Tennis Ass’n,

297 F.R.D. 75 (S.D.N.Y. 2013) ..................................................................................... 38
-iii-
154498.00601/128556302v.8
Mtume v. Sony Music Entm’t,

408 F. Supp. 3d 471 (S.D.N.Y. 2019) ............................................................................. 6
Music Sales Corp. v. Morris,

73 F.Supp.2d 364 (S.D.N.Y. 1999)................................................................................. 6
In re Namenda Direct Purchaser Antitrust Litig.,

331 F. Supp. 3d 152 (S.D.N.Y. 2018) ........................................................................... 38
In re Namenda Indirect Purchaser Antitrust Litig.,

338 F.R.D. 527 (S.D.N.Y. 2021) ................................................................................... 25
In re NASDAQ Mkt.-Makers Antitrust Litig.,

169 F.R.D. 493 (S.D.N.Y. 1996) ................................................................................... 22
In re Nassau County Strip Search Cases,

461 F.3d 219 (2d Cir. 2006) ......................................................................................... 38
Nicholson v. Williams,
205 F.R.D. 92 (E.D.N.Y. 2001)..................................................................................... 44
In re NTL, Inc. Secs. Litig.,

No. 02 Civ 3013, 2006 WL 330113 (S.D.N.Y. Feb. 14, 2006)..................................... 25
Nw. Nat’l Bank of Minneapolis v. Fox & Co.,

102 F.R.D. 507 (S.D.N.Y. 1984) ................................................................................... 24
In re Risk Mgmt. Alts., Inc. Fair Debt Collection Practices Act Litig.,
208 F.R.D. 493 (S.D.N.Y. 2002) ................................................................................... 26
Robidoux v. Celani,
987 F.2d 931 (2d Cir. 1993) ................................................................................... 24, 32
Seijas v. Republic of Argentina,

606 F.3d 53 (2d Cir. 2010) ..................................................................................... 38, 43
Shakhnes ex rel. Shakhnes v. Eggleston,

740 F. Supp. 2d 602 (S.D.N.Y. 2010), aff’d in part and vacated in part
on other grounds, 689 F.3d 244 (2d Cir. 2012) .......................................................... 32
Shelter Realty Corp. v. Allied Maint. Corp.,

75 F.R.D. 34 (S.D.N.Y. 1977) ....................................................................................... 38
Siegel v. Warner Bros Ent. Inc.,

658 F. Supp. 2d 1036 (C.D. Cal. 2009) ...................................................................... 5, 6
Spencer v. No Parking Today, Inc.,

No. 12 Civ. 6323, 2013 WL 1040052 (S.D.N.Y. 2013).......................................... 23, 26
Spicer v. Pier Sixty LLC,

269 F.R.D. 321 (S.D.N.Y. 2010) ................................................................................... 32
-iv-
154498.00601/128556302v.8
Stewart v. Abend,
495 U.S. 207, 110 S.Ct. 1750 (1990) ........................................................................... 30
Stillwater Ltd. v. Basilotta,

No. CV 16-1895, 2017 WL 2906056 (C.D. Cal. Mar. 17, 2017) ................................... 6
In re Sumitomo Copper Litig.,

194 F.R.D. 480 (S.D.N.Y. 2000) .................................................................................. 25
TD Bank N.A. v. Hill,

928 F.3d 259 (3d Cir. 2019) ............................................................................. 21, 29, 31
Tiro v. Pub. House Invs., LLC,

288 F.R.D. 272 (S.D.N.Y. 2012) ................................................................................... 38
In re U.S. Foodservice Inc. Pricing Litig.,

729 F.3d 108 (2d Cir. 2013) ......................................................................................... 23
In re Universal Serv. Fund Tel. Billing Practices Litig.,

219 F.R.D. 661 (D. Kan. 2004)..................................................................................... 43
Vargas v. Howard,
324 F.R.D. 319 (S.D.N.Y. 2018) ................................................................................... 25
Ventura v. New York City Health and Hosps. Corp.,

125 F.R.D. 595 (S.D.N.Y. 1989) ................................................................................... 26
In re Vitamin C Antitrust Litig.,

279 F.R.D. 90 (E.D.N.Y. 2012)..................................................................................... 23
Waite v. UMG Recordings, Inc.,

450 F. Supp. 3d 430 (S.D.N.Y. 2020) ................................................................... passim
Yoakam v. Warner Music Gr. Corp.,

No. 2:21-cv-01165, 2021 WL 3774225 (C.D. Cal. July 12, 2021)................................ 6
Zivkovic v. Laura Christy LLC,

329 F.R.D. 61 (S.D.N.Y. 2018) ..................................................................................... 25
Statutes
17 U.S.C § 101................................................................................................... 20, 21, 39, 40
17 U.S.C. § 203............................................................................................................ passim
17 U.S.C. § 203(a)(5) .................................................................................................. passim
17 U.S.C. § 203(b)(2) .......................................................................................................... 18
17 U.S.C. § 502.................................................................................................................... 44
-v-
154498.00601/128556302v.8
Other Authorities
Fed. R. Civ. P. 23......................................................................................................... passim
Fed. R. Civ. P. 23(a)(1) ....................................................................................................... 24
Fed. R. Civ. P. 23(a)(3) ....................................................................................................... 32
Fed. R. Civ. P. 23(a)(4) ................................................................................................. 33, 34
Rule 23(a)..........................................................................................................22, 24, 33, 45
Rule 23(a)(2)....................................................................................................................... 25
Rule 23(a)(3)....................................................................................................................... 32
Rule 23(b) ........................................................................................................................... 22
Rule 23(b)(2) .......................................................................................................... 43, 44, 45
Rule 23(b)(3) .............................................................................................................. passim
Rule 30(b)(6) ........................................................................................................................ 1
Rule 65(f) ............................................................................................................................ 44
-vi-
154498.00601/128556302v.8
I. INTRODUCTION
The claims asserted in this case are well-suited for class treatment and
adjudication. Plaintiffs seek class certification here to tear down a central structural
element crafted by these record labels decades ago – “work made for hire” provisions –
that they use to deny recording artists their federally protected rights.
Section 203 of the United States Copyright Act of 1976, 17 U.S.C. § 203 (“Section
203”) provides authors, including recording artists, or their heirs with an inalienable and
un-waivable right to terminate grants of copyright ownership thirty-five (35) years after
the initial grant for works created on or after January 1, 1978. 1 Since early 2013,
hundreds of recording artists (or their heirs or successors-in-interest) have served Notices
of Termination upon Defendants UMG Recordings, Inc. and Capitol Records, LLC
(collectively, “Defendants” or “UMG”) pursuant to Section 203 involving thousands of
sound recordings. Defendants have rejected or ignored them all.
Defendants have systematically and uniformly refused to honor the Notices of
Termination, instead treating these legally effective and vested terminations as
“invitations to have a discussion [i.e., to negotiate].” 2 Defendants have been holding the
artists’ rights hostage and have deprived the artists of the ability to reclaim their rights,
to engage in equal bargaining or competitive negotiations, or even to negotiate direct
distribution or licensing deals with third parties to exploit their works as they deem
1 “The termination right for the first eligible works therefore did not vest until
January 1, 2013.” Waite v. UMG Recordings, Inc., 450 F. Supp. 3d 430, 433-34 (S.D.N.Y.
2020). This action, along with the companion Johansen v. Sony Music Ent. Inc., No. 19
Civ. 1094 (S.D.N.Y.) (Ramos, J.), were filed in February 2019. They are the first
complaints seeking to represent recording artists on a classwide basis to assert Section
203 termination claims. Accordingly, most likely because these rights only recently have
vested in the artists, no court has considered the class certification issues raised here.
2 Exhibit 1, UMG Recordings, Inc. Rule 30(b)(6) Deposition (Alasdair J.
McMullan) (“McMullan Dep. I”) at 110:18-112:3; Exhibit 25, Capitol Records, LLC
Rule 30(b)(6) Deposition (Alasdair J. McMullan) (“McMullan Dep. II”) at 45:21-46:10
(“we view most of these as an invitation to negotiate”).
appropriate and on terms they choose. In rejecting all the Notices of Termination,
Defendants have asserted purported defenses without applying any meaningful
distinctions, implicitly conceding the commonality of the issues across the proposed
Classes.
Defendants’ refusals are made, in every instance, on the same or similar fictitious
or erroneous legal grounds.
First, Defendants contend that the sound recordings created by recording artists
under contract with Defendants (or their affiliates or predecessor companies) are “works
made for hire,” and, therefore, are not covered by Section 203. They premise this alleged
universal “work made for hire” defense entirely upon ubiquitous contractual language
that was inserted “solely for purposes of United States Copyright Law” to create the
illusion of a non-terminable work. But the law is well-settled that the Defendants’ mere
inclusion of these “work made for hire” provisions is insufficient to carry their evidentiary
burden of proving that the recording was, in fact, a work made for hire. Most tellingly,
after extensive discovery as to all of the artists in the Classes, Defendants have failed to
proffer any probative or relevant evidence that any recording artists within the proposed
Classes had an employer-employee relationship with any of Defendants’ record labels at
any relevant time.
Second, Defendants argue that sound recordings constitute compilations or
collective works. But, as a matter of law, sound recordings do not fall within the
applicable definitions or categories.
By combining these flawed arguments, Defendants take the position that none of
the grants at issue are terminable. Accordingly, through these fictions and artifices,
Defendants steadfastly refuse to acknowledge that any recording artist (or his or her
successor) has the right to take over control of the sound recordings or enter into an
-2-
154498.00601/128556302v.8
agreement with a different record label for the exploitation of recordings after the
effective date of termination. At the same time, Defendants have continued to exploit the
sound recordings at issue after the effective termination date, financially benefiting from
and exercising complete dominion and control over the exploitation of the works, and
thereby engaging in willful copyright infringement.
This case meets all the requirements of Rule 23 of the Federal Rules of Civil
Procedure and involves the type of systematic wrongful conduct by corporate defendants
that courts in the Second Circuit have routinely found to be appropriate for class
treatment. The putative class is large and unified in its claims, with common facts and
issues alleged against Defendants. Moreover, the claims of the plaintiffs and class
representatives Kasim Sulton (“Sulton”), Susan Straw Harris p/k/a Syd Straw (“Straw”),
Leonard Graves Phillips (“Phillips”), Stan Sobol a/k/a Stan Lee (“Lee”), Joel David Pellish
(“Pellish), Dennis Mehaffey (“Mehaffey”), and Steve Wynn (“Wynn”) (collectively, Sulton,
Straw, Phillips, Lee, Pellish, Mehaffey, and Wynn, the “Plaintiffs”), are typical of the class,
and questions of law and fact common to members of the Classes clearly predominate
over any questions affecting only individual members. Finally, Plaintiffs have vigorously
and competently prosecuted this case of first impression on behalf of the Classes and will
continue to do so through trial. Thus, certification of both proposed Classes of recording
artists who have served valid and timely Section 203 Notices of Termination on
Defendants with an effective date of termination of January 1, 2013 or later is clearly
warranted and far superior to other available methods for the fair and efficient
adjudication of this controversy.
The Court should grant Plaintiffs’ Motion for Class Certification and certify Classes
A and B for the remainder of this litigation, including trial. This case presents this Court
with an opportunity to reveal the record labels’ systematic practice of ignoring artists’
-3-
154498.00601/128556302v.8
statutory rights, while vindicating Congress’s intent when it enacted the Section 203
termination right in favor of these talented artists.
II. OVERVIEW OF SECTION 203 AND ITS UNDERLYING POLICIES
Before delving into the Rule 23 class certification requirements, a brief overview
of the simplicity of the Section 203 termination rights and the infringement claims that
flow from those rights is appropriate. The stated purpose of Section 203’s termination
provisions is “to protect authors and their heirs against unremunerative agreements by
giving them an opportunity to share in the later economic success of their works by
allowing authors or their heirs, during particular periods of time long after the original
grant, to regain the previously granted copyright or copyright rights.” 3 As this Court has
recognized, Plaintiffs’ infringement claims are straightforward: a legally cognizable
copyright infringement claim exists when a “valid and timely termination notice is sent,”
“a termination right vests,” the termination notice “is ignored,” and “the copyright’s
grantee continues to distribute the work.” Waite, 450 F. Supp. 3d at 437.
As an initial matter, “there is no approved form for termination notices [including
schedules], [however] the Copyright Office has promulgated regulations specifying the
required contents of a termination notice[.]” Siegel v. Warner Bros Ent. Inc., 658 F. Supp.
2d 1036, 1092 (C.D. Cal. 2009) (citing 37 C.F.R. §201.10(b)(2)), rev’d on other grounds
sub nom. Larson v. Warner Bros. Ent., Inc., 504 F. App’x 586 (9th Cir. 2013). 4 A
termination notice is to include: (1) the name of each grantee (or successor), and each
address where service is made; (2) the title and name of at least one author, and the date
the copyright was secured for each work to which the notice applies (including the
3 U.S. Copyright Office, Notices of Termination:

https://www.copyright.gov/recordation/termination.html (last accessed April 5, 2022).
4 That the termination notice schedules are part of the termination notices is plain
to see. The schedules are expressly “annexed” to the preceding summary page in each
case, thereby becoming part of the termination notice document.
-4-
154498.00601/128556302v.8
registration number if available); (3) a brief statement reasonably identifying the grant
being terminated; (4) the effective date of termination; and (5) the name, signature and
address of the person executing the termination. Id. (citing 37 C.F.R. §201.10(b)(1)-(2),
(c)(1), and (c)(4)). “Upon the effective date of termination, the grant is terminated and
the copyright reverts to the author.” Waite, 450 F. Supp. 3d at 434.
Courts considering Section 203 routinely recognize that one of its main purposes
is to ensure that artists have an opportunity to reclaim the rights to their works. See, e.g.,
Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 19 (2d Cir. 2015). To further this goal,
and in recognition of the potential for human error and the fact that authors may not
possess every piece of information set forth in the Copyright Act, the regulations include
a safety net to ensure that “[h]armless errors in a notice that do not materially affect the
adequacy of the information required to serve the purposes of [the statute] shall not
render the notice invalid.” Siegel, 658 F. Supp. 2d at 1092 (citing 37 C.F.R.
§ 201.10(e)(1)). Indeed, even general termination notices that seek to terminate a
“[g]rant or transfer of copyright and the rights of copyright proprietor, including
publication and recording rights[]” have been held adequate to effect termination even
though such a generic statement does not “reasonably identify the grant” being
terminated. See Music Sales Corp. v. Morris, 73 F.Supp.2d 364, 378 (S.D.N.Y. 1999)
(stating that although generic, “the custom of the industry and of the Register of
Copyrights dictates that this language is adequate. In fact, it appears to be boilerplate on
termination notices customarily accepted by the Register of Copyrights.”). 5
5 In evaluating contentions that termination notices were invalid on their face,

courts have consistently rejected technical challenges, instead examining whether the
notices reasonably informed the copyright holder of the relevant information. See, e.g.,
Yoakam v. Warner Music Gr. Corp., No. 2:21-cv-01165, 2021 WL 3774225, at *7 (C.D.
Cal. July 12, 2021); Waite, 450 F. Supp. 3d at 440; Johansen v. Sony Music Ent. Inc., No.
19 Civ. 1094, 2020 WL 1529442, at *5-7 (S.D.N.Y. Mar. 31, 2020); Mtume v. Sony Music
-5-
154498.00601/128556302v.8
III. STATEMENT OF FACTS
A. Kasim Sulton
Kasim Sulton is an American bass guitarist, keyboardist, and singer from Staten
Island, New York. His illustrative music career began in 1976 as a bass guitarist with
Todd Rundgren’s band “Utopia” and continues to this day. Although best known for his
musical work with Utopia, Sulton also has created notable solo projects and has toured as
a bassist with many musical acts such as Michael Lee Aday (the recently deceased artist
professionally known as Meat Loaf). Exhibit 2, Sulton Dep. at 22:25-23:22. In the late
1970’s, Sulton decided to create a solo album apart from his work with Utopia. Sulton
Dep. at 63:24-64:16. To do so, he shopped around a “demo” to various labels. Sulton
Dep. at 63:24-64:16. He eventually signed a recording agreement with EMI America
Records, Inc. (“EMI”) (a predecessor of Defendant Capitol Records, LLC) on September
29, 1980 to release his first solo album. Exhibit 3, UMG0019812-0019863 (“Sulton
Recording Agreement”).
The Sulton Recording Agreement was drafted, designated, and intended by EMI to
secure the exclusive recording services of Sulton. Id. It provided that, for a term of
eighteen months, Sulton could record two albums, the first of which would eventually be
his solo album Kasim. Id. at ¶ 3. The Sulton Recording Agreement contained boilerplate
“work made for hire” language in which the recording artist must “acknowledge[] and
agree[]” that each sound recording was a “work made for hire” by virtue of “prepared
within the scope of [EMI’s] engagement of his personal services” or being “specially
ordered by [EMI] as a contribution to a collective work.” Id. at ¶ 6(a)(i). Importantly, the
Entm’t, 408 F. Supp. 3d 471, 476 (S.D.N.Y. 2019); Horror Inc. v. Miller, 335 F. Supp. 3d
273, 320 (D. Conn. 2018), aff’d, 15 F.4th 232 (2d Cir. 2021); Stillwater Ltd. v. Basilotta,
No. CV 16-1895, 2017 WL 2906056, at *4 (C.D. Cal. Mar. 17, 2017); Siegel, 658 F. Supp.
2d at 1091; Music Sales Corp. v. Morris, 73 F. Supp. 2d 364, 379 (S.D.N.Y. 1999).
-6-
154498.00601/128556302v.8
Sulton Recording Agreement also contained an assignment provision, stating that in the
event the sound recordings were not considered works made for hire, Sulton “grant[ed]
and assign[ed] to EMI all exclusive rights of the copyright in and to” the sound recordings.
Id. at ¶ 6(a)(ii). On or about September 29, 1980, Sulton executed a Power of Attorney
in which, in the event that Sulton failed and/or refused to sign documents that EMI
considered to be important, he appointed EMI as his attorney to execute, deliver, and
record all documents and instruments necessary or desirable to grant and assign to EMI
the exclusive rights in copyrights in the sound recordings Sulton was to record pursuant
to the Sulton Agreement. Ex. 3, at UMG0019838.
After signing the Recording Agreement, Sulton began work on his solo album. At
all times during the recording process, he maintained complete creative control. Exhibit
2, Sulton Dep. at 223:6-21. He exclusively decided what creative direction to take, which
studio musicians would perform, which producer to use, which songs would be selected,
what singles would be published, and how the songs would be sequenced. Id. at 110:2-8,
125:11; 109:19-25 (When asked whether EMI approved of all the musicians playing on
Kasim, Sulton said “EMI did not have to approve them. That was my decision, they were
going to play on my record.”). EMI did not provide any input or guidance. EMI never told
Sulton that he had to show up at a studio at certain times, nor did EMI dictate how to
create the sound recordings in any way. Id. at 110:9-25, 121:20-122:7. During this time
(or at any time), Sulton was never an employee of EMI (or Defendants). EMI never paid
Sulton a salary or sent him a paycheck. Id. at 223:22-24. EMI never withheld any income
tax on Sulton’s behalf. EMI never provided Sulton with insurance or any other benefits.
EMI never provided Sulton with an office. Id. at 223:6-21.
On January 11, 1982, Sulton released Kasim, comprised of ten sound recordings.
Thereafter, EMI filed a copyright application with the U.S. Copyright Office to register
-7-
154498.00601/128556302v.8
Kasim. Exhibit 4, UMG0026361-0026362. The application categorized Kasim as a
“sound recording” (and not a “compilation” or a “collective work”). Id. The U.S.
Copyright Office issued EMI a Certificate of Registration for Kasim with an effective date
of January 20, 1982. Id. More than three decades later, on July 20, 2016, Sulton sent a
notice of termination to Defendants, informing them that he was terminating the grant of
rights to the sound recordings in Kasim. Exhibit 5, UMG0019808-0019811. Sulton’s
notice terminated “[a]ll grants or transfers of copyright and all rights of copyright
proprietor … in and to the [] sound recordings including, without limitation to the grant
dated in or about 1981[.]” Id. Sulton’s notice identified: (1) the work; (2) the author;
(3) publication date; (4) the copyright registration number; (5) the termination notice
date; and (6) the effective date of termination for each of the grants to musical works that
Sulton was terminating. Id. Sulton subsequently caused the notice of termination to be
recorded in the U.S. Copyright Office. Id. The effective date of termination for those
sound recordings was July 21, 2018. Id. Defendants, however, refused to return the
rights to the sound recordings in Kasim. Defendants continue to retain the rights to the
sound recordings in Kasim, and to date, have prevented Sulton from exploiting the sound
recordings, well after the effective date of termination.
B. The Dickies (Leonard Graves Phillips and Stan Sobol)
The Dickies are a punk rock band from Los Angeles, California. Originally formed
in 1977, The Dickies are one of the longest tenured punk rock bands, and have been in
continuous existence for over 45 years. Exhibit 6, Phillips Dep. at 39:1-3, 61:16-24.
Known as the “clown princes of punk,” The Dickies use catchy melodies, harmony vocals,
and pop song structures. Id. at 42:3-43:7.
The Dickies were discovered in or about late 1977 or early 1978 by music manager
John Hewlett in Los Angeles, who decided to shop their “demo” to various record labels.
-8-
154498.00601/128556302v.8
Id. at 44:20- 45:12; Exhibit 7, Sobol Dep. at 20:6-20. After receiving multiple offers
from interested labels, The Dickies chose to sign with A&M Records Limited (“A&M”)
because it offered the highest advance and the most creative control to The Dickies. Ex.
6, Phillips Dep. at 46:2-49:5. On April 3, 1978, The Dickies band members – Leonard
Graves Phillips, William Remar, Robert Davis, and Carlos Caballero – signed a recording
agreement with A&M Records Limited (“A&M”) (a predecessor to Defendant UMG
Recordings, Inc.) to release an album (the “Dickies Recording Agreement”). Exhibit 8,
UMG0000731-0000763; Ex. 6, Phillips Dep. at 49:6-10; Ex. 7, Sobol Dep. at 13:15-23.
The Dickies Recording Agreement was drafted, designated, and intended by A&M
to secure the exclusive recording services of The Dickies. Ex. 8. It provided that, for a
one-year term, The Dickies could record one album, as well as a second album at A&M’s
election. Id. at ¶ 2(a)(i)(ii). The Dickies Recording Agreement contained boilerplate
“work made for hire” language. (Id. at ¶ 4 (“… it being understood that for such purposes
you and all other persons rendering services in connection with such master recordings
shall be our employees for hire[.]”). Importantly, The Dickies Recording Agreement
contained an assignment provision, stating that in the event the sound recordings were
not considered works made for hire, The Dickies nevertheless were required to “execute
and deliver to [A&M Limited] any assignments of copyright (including renewals and
extensions thereof) in and to such master recordings as [A&M Limited] may deem
necessary[.]” Id.
The Dickies recorded sound recordings pursuant to The Dickies Recording
Agreement in or around 1978 and 1979. The Dickies exercised complete artistic control
over the sound recordings. Ex. 6, Phillips Dep. at 65:23-66:25 (“my understanding
was…that we were going to receive a budget to make an album…and that we were given
complete artistic control to make it any way we wanted to make it in terms of the sounds,
-9-
154498.00601/128556302v.8
in terms of the sound, in terms of the imagery for the – the graphic art; that sort of
thing.”). They unilaterally selected the producers and studio musicians. Id. at 62:2-63:5
(Phillips testified that The Dickies chose Robin Cable as a producer and said “being as we
had complete artistic control, it was our decision who would – you know, who we could
have in the studio”). They unilaterally hired and fired certain producers and sound
engineers. They booked the studios and rented the equipment. Id. at 85:8-19. And they
chose which sound recordings would be selected as songs on Dawn of the Dickies, as well
as which sound recordings would be released as singles. A&M never provided The Dickies
with any input or guidance regarding the sound or direction of the sound recordings. Id.
at 92:8-22. Indeed, no one from A&M ever attended any of their recording sessions. Ex.
7, Sobol Dep. at 96:23-97:5.
At the time of execution of The Dickies Recording Agreement, or at any time
thereafter, were Phillips, Sobol, or the other members of The Dickies ever an employee of
A&M. Id. at 127:12-130:10. A&M never paid them a salary, withheld any income tax on
their behalf, provided them with insurance or any other benefits, or provided them with
an office at Virgin. Id. at 127:12-130:10.
On November 9, 1979, The Dickies released Dawn of The Dickies, also comprised
of ten sound recordings. On or about February 25, 1980, A&M filed a copyright
application with the U.S. Copyright Office to register Dawn of The Dickies. Exhibit 9,
UMG0024425-00244226. The application categorized Dawn of The Dickies as a sound
recording (and not a “compilation” or a “collective work”). Id. The U.S. Copyright Office
issued A&M a Certificate of Registration for Dawn of The Dickies with an effective date of
February 25, 1980. Id.
Decades later, on September 12, 2017, The Dickies sent a notice of termination to
Defendants, informing Defendants that The Dickies were terminating the grant of rights
-10-
154498.00601/128556302v.8
to the sound recordings in Dawn of The Dickies. 6 Exhibit 10, UMG0000764-00007 66.
Like the other class representatives’ notices, the Dickies’ notice terminated “[t]he grant
or transfer of copyright interests in and to the sound recordings . . . , including without
limitation the right of publication, as set forth in the recording agreement dated on or
about January 7, 1979[.]” Id. at UMG0000764. The Dickies’ notice identified: (1) the
work; (2) the author; (3) publication date; (4) the copyright registration number; (5) the
termination notice date; and (6) the effective date of termination for each of the grants to
musical works that The Dickies were terminating. Id. Thereafter, on June 21, 2019, The
Dickies caused the notice of termination to be recorded in the U.S. Copyright Office, as
document V9964 D904 P1-3. The effective date of termination for those sound
recordings was September 13, 2019. Id. Defendants, however, refused to return the
rights to the sound recordings. Defendant instead chose to continue to exploit the sound
recordings in Dawn of The Dickies and have prevented The Dickies from exploiting the
sound recordings, well after the effective date of termination. Ex. 6, Phillips Dep. at 17:2-
15 (testifying that UMG is continuing to hold and exploit the sound recordings in Dawn
of the Dickies); Ex. 7, Sobol Dep. at 103:14-104:8, 120:17-121:15 (testifying he loves the
album, wants it back, and A&M “had nothing to do with telling us what to do or anything
about that”).
C. Dream Syndicate (Steve Wynn, Dennis Mehaffey and Joel David

Pellish)
Dream Syndicate is an alternative rock band from Los Angeles, California that was
originally formed in 1981. The band quickly became an influential part of the Paisley
Underground music movement of the 1980’s music scene in Los Angeles, which was
6 The notice of termination was executed by Leonard Graves Phillips, Stan Sobol,
and Israel Caballero (as successor-in-interest to Carlos Caballero). Israel Caballero
initially was a Plaintiff but was voluntarily dismissed by stipulation.
-11-
154498.00601/128556302v.8
known for mixing 1960’s style psychedelic garage rock and contemporary pop music.
Dream Syndicate actively recorded and toured from 1981 to 1989. 7 Exhibit 11, Wynn
Dep. at 57:17-58:12, Exhibit 12, Pellish Dep. at 19:22-20:9; Exhibit 13, Mehaffey Dep.
at 59:14-25. After receiving critical acclaim for its debut album, Days of Wine and Roses,
the band sought more creative freedom with another label. Ex. 12, Pellish Dep. at 26:4-
17; Ex. 11, Wynn Dep. at 76:9-15. Dream Syndicate eventually decided to sign with A&M
(a predecessor to Defendant UMG Recordings, Inc.) because it offered the band the most
creative control and was considered to be an “artist-driven label.” Ex. 12, Pellish Dep. at
26:4-17; 74:24-75:3 (“We went with A&M because of the…artistic liberty.”)
On September 1, 1983, Dream Syndicate’s band members – Dennis Mehaffey, Joel
David Pellish, Steve Wynn, and Karl Precoda – signed a recording agreement with A&M
to release their sophomore album called Medicine Show. Exhibit 14, UMG0019665-
UMG0019717 (the “Dream Syndicate Recording Agreement”). The Dream Syndicate
Recording Agreement was drafted, designated, and intended by A&M to secure the
exclusive recording services of Dream Syndicate. Id. It provided that, for a term of
eighteen months, Dream Syndicate could record its sophomore album with the label. Id.
at ¶ 1(b)(i), 2(a)(i). The Dream Syndicate Recording Agreement contained boilerplate
“work made for hire” language. Id. at ¶ 4(a) (“Solely for the purposes of the United States
Copyright Law, you and all other persons rendering services in connection with such
master recordings shall be deemed to be our ‘employees for hire’ and all such master
recordings shall be ‘works made for hire.’”) (emphasis added). Importantly, the Dream
Syndicate Recording Agreement contained an assignment provision, stating that in the
event the sound recordings were not considered works made for hire, Dream Syndicate
7 Dream Syndicate re-formed in 2012 and remains active to this day. Ex. 11, Wynn
Dep. at 57:17-58:12; Ex. 13, Mehaffey Dep. at 60:1-25.
-12-
154498.00601/128556302v.8
was required to “execute and deliver to [A&M Records] any assignments of copyright
(including renewals and extensions thereof) in and to such master recordings as [A&M
Records] may deem necessary.” Id.
The Dream Syndicate recorded sound recordings pursuant to the Recording
Agreement from September of 1983 until March of 1984, creating the sound recordings
for Medicine Show. Ex. 11, Wynn Dep. at 86:7-10; Ex. 12, Pellish Dep. at 83:15-20.
The Dream Syndicate had, and exercised, complete artistic control over the sound
recordings. They unilaterally selected the producer, sound engineers, and studio
musicians without input from A&M. Ex. 13, Mehaffey Dep. at 50:15-51:1; Ex. 11, Wynn
Dep. at 142:11-144:6 (“everything involving writing the songs, choosing the songs,
arranging the songs, recording them in the studio, the process – who we hired in the
studio, which takes we used, how we mixed the records, choosing mixed, mastering the
record were entirely the band. We – the four of us made those decisions ourselves.”). The
Dream Syndicate selected the sound recordings that were included on Medicine Show, as
well as the sound recordings that were released as singles. A&M never provided Dream
Syndicate with any input or guidance regarding the sound or direction of the sound
recordings that The Dream Syndicate recorded. Ex. 12, Pellish Dep. at 28:2-24; Ex. 11,
Wynn Dep. at 114:14-116:20 (“We were very autonomous. We … developed our own
material, our own songs, our own direction in the studio, so there was really no
involvement from A&M with us in any of those things[.]”).
At the time of execution of the Dream Syndicate Recording Agreement, neither
Wynn, Precoda, Pellish, nor Mehaffey were employees of A&M. At no time during the
term of the A&M Agreement, or at any time thereafter, were Wynn, Precoda, Pellish, or
Mehaffey ever employees of A&M. A&M never paid Wynn, Precoda, Pellish, or Mehaffey
a salary, withheld any income tax on their behalf, provided them with insurance or any
-13-
154498.00601/128556302v.8
other benefits, provided them with a work schedule, required them to work certain hours,
or provided them with an office at A&M. Wynn Decl. ¶¶ 5-12; Pellish Decl. ¶¶ 3-10;
Mehaffey Decl. ¶¶ 3-10.
On May 7, 1984, Dream Syndicate released Medicine Show, comprised of eight
sound recordings. Ex. 12, Pellish Dep. at 89:22-24. A&M subsequently filed a copyright
application with the U.S. Copyright Office to register the sound recordings in Medicine
Show, identifying the works as “sound recording[s]” (and not a “compilation” or a
“collective work”). Exhibit 15, UMG0024459-0024460.
More than three decades later, on March 1, 2016, Dream Syndicate sent a notice
of termination to Defendants, informing them that Dream Syndicate was terminating the
grant of rights to the sound recordings in Medicine Show. Exhibit 16, UMG0018148-
0018155. Like the other class representatives’ notices, the Dream Syndicate’s notice
terminated “[a]ll grants or transfers of copyright and all rights of copyright proprietor …
in and to the [] sound recordings including, without limitation to the grant dated in or
about 1985[.]” Id. The Dream Syndicate’s notice identified: (1) the work; (2) the author;
(3) publication date; (4) the copyright registration number; (5) the termination notice
date; and (6) the effective date of termination for each of the grants to musical works that
Dream Syndicate was terminating. Id. Thereafter, the Dream Syndicate caused the notice
of termination to be recorded with the U.S. Copyright Office, as document V9922 D131
P1-6. Exhibit 16, UMG0018148-0018155. The effective date of termination for those
sound recordings was May 8, 2019. Id. However, Defendants refused to return the
rights to the sound recordings to Dream Syndicate. Instead, Defendants continued to
exploit the sound recordings in Medicine Show. Id. On and after May 8, 2019,
Defendants have continued to exploit the sound recordings in Medicine Show.
-14-
154498.00601/128556302v.8
D. Susan Straw Harris p/k/a Syd Straw
Susan Straw Harris, professionally known as Syd Straw (“Straw”) is an American
rock singer, songwriter, and performer. She began her career singing backup for Pat
Benatar, and eventually took her distinct voice to the alternative music scene, joining the
Golden Palominos as a singer from 1985 to 1987. Thereafter, Straw sought to create a
solo album, and was approached by Virgin Records America, Inc. (“Virgin Records”) (a
predecessor of Capitol Records, LLC) (“Virgin Records”). Exhibit 17, Straw Dep. at
24:24-25:10, 27:8-24 (“They came to me and they were a very happening boutique label
at the time and they thought that I was just the kind of renegade that they’d like to
promote.”). On July 20, 1987, Straw signed a recording agreement with Virgin Records
to release her first solo album. Exhibit 18, UMG0027890-0027935 (the “Straw
Recording Agreement”).
The Straw Recording Agreement was drafted, designated, and intended by Virgin
Records to secure the exclusive recording services of Straw. Id. It provided that Straw
could record one album, which would eventually be her first solo album Surprise. Id. at
¶ 3(a). The Straw Recording Agreement contained boilerplate “work made for hire”
language, which provided that “for purposes of copyright law” Straw was to be considered
an “employee[] for hire.” Id. at ¶ 6(a). Importantly, the Straw Recording Agreement also
contained an assignment provision, stating that in the event the sound recordings were
not considered works made for hire, Straw granted and assigned to Virgin Records all
exclusive rights of the copyright in and to the sound recordings, which was to “constitute
an irrevocable transfer to us of ownership of copyright (and all renewals and extensions)
in those Master Recordings.” Id.
Straw recorded sound recordings pursuant to the Straw Recording Agreement in
or around 1988. Exhibit 17, Straw Dep. at 49:2-5. Straw exercised complete artistic
-15-
154498.00601/128556302v.8
control over the sound recordings. She unilaterally selected the studio musicians that
performed on the sound recordings and the producers that produced those recordings.
Id. at 66:3-6, 167:10-168:4. Virgin Records never provided Straw with any input or
guidance regarding the sound or direction of the sound recordings that Straw recorded.
Straw also selected the sound recordings that were included on her solo album, Surprise,
that was released by Virgin Records, as well as the sound recordings that were released as
singles. Id. at 97:4-98:6 (Straw testified she chose which songs to release as singles and
that “Virgin Records let me do whatever I told them I was doing, which was very bold and
brave of them to give me full range”). Virgin Records never told Straw that she had to
show up at a studio at certain times to record the sound recordings. Straw Decl. ¶ 6.
At the time of execution of the Straw Recording Agreement, Straw was not an
employee of Virgin Records, and at no time during the term of the Straw Recording
Agreement, or at any time thereafter, was Straw ever an employee of Virgin Records. Ex.
17, Straw Dep. at 77:2-6 (“I see the misleading language including ‘employees for hire,’
which I certainly never was.”). Virgin Records never paid Straw a salary, withheld any
income tax on her behalf, provided her with insurance or any other benefits, or provided
her with an office at Virgin Records. Straw Decl. ¶¶ 3-9.
On June 21, 1989, she released Surprise, comprised of eleven sound recordings.
Exhibit 19, UMG0028535-0028536. The next day, Virgin Records filed a copyright
application for Surprise with the U.S. Copyright Office, identifying the works as “sound
recording[s] and original artwork.” Id. Decades later, on June 21, 2016, Straw sent a
notice of termination to Defendants, informing them that she sought to terminate the
grant of rights to the sound recordings in Surprise. Exhibit 20, UMG0027939-00279 41.
Like the other class representatives’ notices, the Straw notice terminated “[a]ll grants or
transfers of copyright and all rights of copyright proprietor … in and to the [] sound
-16-
154498.00601/128556302v.8
recordings including, without limitation to the grant dated in or about 1989[.]” Id. The
Straw notice identified: (1) the work; (2) the author; (3) publication date; (4) the
copyright registration number; (5) the termination notice date; and (6) the effective date
of termination for each of the grants to musical works that Straw was terminating. Id.
Straw subsequently caused the notice of termination to be recorded in the U.S. Copyright
Office, as document V9964 D257 P1 through P3. Exhibit 21, P03585-3594. The
effective date of termination for those sound recordings has not yet passed and will occur
on June 22, 2024. Id. As a result, Straw seeks to represent artists in Class B seeking final
injunctive relief and corresponding declaratory relief. 8
E. Class Members’ Evidence of Defendants’ Uniform Disregard of

the Vested Terminations
As demonstrated by Plaintiffs’ Exhibit 22, every Class Member in Classes A and
B has sent a valid and timely Notice of Termination to Defendants. Id. Under Section
203, the “future rights that will revert upon termination of the grant become vested on
the date the notice of termination” is served. 17 U.S.C. § 203(b)(2). As to every Class A
member, the effective date of termination has passed. 9 Ex. 22. As to every Class A
8 Defendant Capitol Records has filed counterclaims against Straw in a transparent

attempt to intimidate her and discourage her from serving as a class representative. The
amount at issue in the counterclaims is less than $500 and it is a virtual certainty that the
Defendants would not pursue such a de minimus claim in the normal course of their
business. Such tactics do not undercut or affect the propriety of class certification here.
They will not affect or influence Straw’s representation of Class B. To the contrary, they
merely strengthen her resolve to represent her fellow recording artists.
9 The Court has discretion to certify Class A to include recording artists whose
effective termination date has passed as of the date of class certification or as of the date
of the filing of Plaintiffs’ motion for class certification. The former date will merely
require the parties to meet and confer as to which artists migrated from Class B to Class
A as of the date of the Court’s class certification decision. This will permit the class to
include as many artists as possible for purposes of recovering statutory damages. The
artists are readily identifiable and are merely migrating from one class to the other based
on the passage of time. Similarly, the Court can include additional Class B artists if they
serve a termination notice prior to the class certification decision.
-17-
154498.00601/128556302v.8
member, Defendants have refused to honor the Termination Notice and continued to
exploit the sound recordings. Id. Defendants have not changed their behavior and
Defendants continue to control and exploit the sound recordings of the Class Members.
As to Class B, the effective dates of termination dates extend until October 1, 2031. Id.
Defendants have not produced any evidence that any member of Class A or Class
B was an employee acting within the scope of his or her employment at the time of the
creation of the sound recordings. They have not produced any records of wages or
salaries, tax withholding, social security deductions, or unemployment insurance. There
is simply no evidence of any bona fide employment relationship between the Defendants
and any of these artists. 10 And, importantly, each recording agreement executed by the
members of Class A and Class B contained “back-up” assignment language whereby the
recording artist assigned his or her rights to Defendants or their predecessors. Id. Such
assignment provisions demonstrate the fictitious nature of the work made for hire
provisions and fatally undermine any suggestion of their validity. The record labels
utilized this equivocal language in what is commonly referred to as a “belt and
suspenders” approach, but this very structure highlights the fact that the drafters of the
agreements expected that the work made for hire provision likely would not survive
judicial scrutiny. 11
10 Defendants did not even allege any facts in their Answer averring that any of the
Plaintiffs or the Class members were employees of the Defendants (or their predecessors)
acting within the scope of any purported employment. See Answer, ECF 101 at pp.18-22.
During discovery, Defendants merely referred to the work made for hire language in the
recording agreements, without more. Indeed, throughout discovery, Defendants have not
been able to identify any percipient witness(es) with first-hand knowledge of any
purported employment relationships involving the Plaintiffs or the Class Members.
11 Defendants’ affiliates and/or predecessors in the United Kingdom have used the
same artifice by seeking to characterize the record label as the “author” or “maker” of the
works. Such provisions are materially similar to the work made for hire provisions
inserted in the domestic recording agreements. Regardless of the language, the
underlying intent and deceptive maneuver was the same. The record labels have sought
to fictitiously re-characterize the relationship in an effort to truncate the United States
-18-
154498.00601/128556302v.8
F. Defendants’ Fictitious and/or Erroneous “Work Made for Hire”

Defense
As Plaintiffs’ Exhibit 23 demonstrates, Defendants and their predecessors
inserted boilerplate “work made for hire” language (or the equivalent under English law)
in virtually all of the recording agreements. Plaintiffs’ Exhibit 23 further shows that there
are some instances where the recording agreement does not contain any “work made for
hire” provision at all. The inescapable fact remains that every Class Member nevertheless
will face the same fictitious and erroneous “defense” asserted by Defendants that the
sound recording was a “work made for hire” whether based on the boilerplate provisions,
the English equivalent or even where there is no such language in the agreement. This
supposed “work made for hire” defense is a sham, designed to serve as an obstacle to the
artists’ recapture of their rights. Defendants’ assertion of this contrived “defense” is
predicated solely upon this boilerplate contractual language and not any actual facts.
Indeed, Defendants’ purported defense is even more tenuous where the “work made for
hire” language is absent from the recording agreements. Because Defendants have failed
to produce any evidence of any bona fide employment relationship with any of the Class
Members, Plaintiffs expect that this litigation will vindicate their termination rights and
dismantle the record labels’ false “work made for hire” defense either when the Court
grants summary judgment in Plaintiffs’ favor on the defense or when the jury sees through
their contrivance.
To understand why this defense is a sham, we provide the following relevant
authorities in advance of addressing the Rule 23 requirements. “[C]opyright ownership
‘vests initially in the author or authors of the work.’” Aymes v. Bonelli, 980 F.2d 857, 860
Copyright Act termination rights. Again, regardless of the contractual language,

Defendants must prove that the works were, in fact, works made for hire under governing
federal law with respect to the U.S. copyrights.
-19-
154498.00601/128556302v.8
(2d Cir. 1992) (quoting 17 U.S.C. § 201(a)). “As a general rule, the author is the party
who actually creates the work, that is, the person who translates an idea into a fixed,
tangible expression entitled to copyright protection.” Community for Creative Non-
Violence v. Reid, 490 U.S. 730, 737, 109 S.Ct. 2166, 2171 (1989) (citing 17 U.S.C.A.
§ 102). Section 101 of the Copyright Act, however, carves out an exception for “works
made for hire.” 17 U.S.C. § 101. If the work is made for hire, “the employer or other
person for whom the work was prepared is considered the author” and owns the
copyright. Id. § 201(b). Section 101 of the Copyright Act defines a “work made for hire”
as follows:
(1) A work prepared by an employee within the scope of his or her

employment; or
(2) A work specially ordered or commissioned for use as a contribution to a

collective work, as a part of a motion picture or other audiovisual work, as a
translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire.
17 U.S.C. § 101. Subsection (1) concerns the traditional employer-employee relationship.
Subsection (2) enumerates nine separate artistic creations that may be deemed a “work
made for hire,” but only if the parties agree to that effect, in writing. “Sound recordings,”
which are at issue in this case, are noticeably absent from that list. Thus, “the sound
recordings are not a work for hire under the second part of the statute because they do
not fit within any of the nine enumerated categories[.]” Ballas v. Tedesco, 41 F. Supp. 2d
531, 541 (D.N.J. 1999).
It is well-settled that contractual language alone is insufficient to carry Defendants’
burden of proving that a work was “made for hire.” See TD Bank N.A. v. Hill, 928 F.3d
259, 272 (3d Cir. 2019). In fact, the Copyright Act’s termination provisions – specifically
Section 203(a)(5) – expressly prohibit any clause, contractual language, or agreement
-20-
154498.00601/128556302v.8
that would deprive an author of his or her termination rights. See 17 U.S.C. § 203(a)(5)
(“Termination of the grant may be effected notwithstanding any agreement to the
contrary, including an agreement to make a will or to make any future grant.”)
(emphasis added). “[I]t is the relationship that actually exists between the parties, not
their description of that relationship, that is determinative.” 3 Nimmer on Copyright
§ 11.02[A][2] (2022). See also Marvel Characters, Inc. v. Simon, 310 F.3d 280, 291 (2d
Cir. 2002) (“Courts engaging in such an analysis have focused on the actual relationship
between the parties, rather than the language of their agreements, in determining
authorship of the work.”) (citations omitted).
Since 1972, “virtually all contracts that artists signed with record companies”
included not only boilerplate “work made for hire” language, but also contained “a backup
assignment.” 1 Nimmer on Copyright § 5.03[B][2][a][ii][II] (2022). Considered a sort of
“belt-and-suspenders” approach, record labels used these non-negotiable provisions
together in an attempt to claim the rights to the artists’ sound recordings. See id. (“These
contracts also typically state that if a court of law finds particular works not to be ‘for hire’
as stipulated by the copyright law, then the works are considered to be assigned to the
record company. This type of clause has almost invariably been non-negotiable.”). “But
one salient difference separates owning something via assignment from owning it as a
work for hire: the latter continues for the life of the copyright, whereas the former is
subject to statutory termination of transfers.” Id.
IV. ARGUMENT: THE COURT SHOULD GRANT PLAINTIFFS’ MOTION

FOR CLASS CERTIFICATION AND CERTIFY BOTH PROPOSED
CLASSES.
A. Applicable Legal Standard
The requirements for class certification are well-established. A party moving for
class certification must meet the requirements of Rule 23(a) (i.e., numerosity,
-21-
154498.00601/128556302v.8
commonality, typicality, and adequacy of representation) and the requirements of at least
one subsection under Rule 23(b). See In re NASDAQ Mkt.-Makers Antitrust Litig., 169
F.R.D. 493, 515 (S.D.N.Y. 1996). In addition, courts have read a fifth “implied
requirement of ascertainability” with respect to the class definition. In re Initial Pub.
Offerings Secs. Litig. (“IPO”), 471 F.3d 24, 30 (2d Cir. 2006).
Though the Court is obliged to undertake a “rigorous” analysis of Rule 23 and the
record in considering class certification, “the Second Circuit has emphasized that Rule 23
should be ‘given liberal rather than restrictive construction’ and has shown a ‘general
preference’ for granting rather than denying class certification.” In re Vitamin C Antitrust
Litig., 279 F.R.D. 90, 98-99 (E.D.N.Y. 2012) (citing Gortat v. Capala Bros., 257 F.R.D.
353, 361 (E.D.N.Y. 2009) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.
1997); Spencer v. No Parking Today, Inc., No. 12 Civ. 6323, 2013 WL 1040052, *10
(S.D.N.Y. 2013) (“The Second Circuit requires a liberal, rather than restrictive,
interpretation of Rule 23 of the Federal Rules of Civil Procedure.”) (citing Marisol A. v.
Giuliani, 126 F.3d at 377). The class certification analysis “will frequently entail overlap
with the merits of the plaintiff’s underlying claim. . . . because class determination
generally involves considerations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.” Comcast Corp. v. Behrend, 569 U.S. 27, 33-
34, 133 S.Ct. 1426, 1432 (2013) (internal citations and quotations omitted). In so doing,
the court should “probe behind the pleadings,” id., “must resolve material factual disputes
relevant to each Rule 23 requirement,” and “must find that each requirement is
established by at least a preponderance of the evidence.” In re U.S. Foodservice Inc.
Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013) (internal quotations and citations
omitted). Plaintiffs’ proposed Classes readily satisfy the requirements of Rule 23.
-22-
154498.00601/128556302v.8
B. The Proposed Classes Satisfy the Rule 23(a) Requirements.
1. The Proposed Classes Are So Numerous That Joinder Is

Impracticable.
Numerosity is established when a represented class is so numerous that joinder of
all members is impracticable. See Fed. R. Civ. P. 23(a)(1). Impracticability means
difficulty or inconvenience of joinder; the rule does not require impossibility of joinder.
See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993); Nw. Nat’l Bank of Minneapolis
v. Fox & Co., 102 F.R.D. 507, 510-11 (S.D.N.Y. 1984).
Here, proposed Class A currently includes more than 100 recording artists and/or
their successors. For ease of reference, Plaintiffs have created a summary exhibit
reflecting the identities of the Class A artists and/or their successors. See Exhibit 22.
Similarly, proposed Class B currently includes more than 120 recording artists and/or
their successors. 12 Because the record shows each proposed Class includes more than 40
artists, joinder is impracticable and the numerosity requirement is satisfied. See, e.g.,
Robidoux, 987 F.2d at 935-36 (class size of 40 or more may satisfy numerosity); Korn v.
Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972) (certifying class which may have
12 Defendants have refused to produce complete recording agreements for artists

they characterize as having entered into loan out and/or furnishing company
arrangements, instead producing more limited documentation. Plaintiffs’ counsel has
been able to resolve most of these issues with Defendants’ counsel but certain
disagreements exist as to Defendants’ overly broad interpretation of the Court’s prior
rulings (e.g., Defendants contend that an artist using a “doing business as” or d/b/a trade
name warrants exclusion). Similarly, Defendants maintain that they have “settled” with a
number of artists after this action was filed. Again, Plaintiffs’ counsel have endeavored to
work through these issues with Defendants but have been hampered by their
unwillingness to share complete documentation. Independent research by Plaintiffs’
counsel also has identified termination notices submitted by additional artists who were
not identified by Defendants. Therefore, Plaintiffs reserve rights as to these artists while
they continue to attempt to resolve these issues with Defendants. Upon certification of
the Classes, the Court can direct Defendants to identify all artists who meet the criteria
established by the Court.
-23-
154498.00601/128556302v.8
been limited to 70 investors); Fidelis Corp. v. Litton Indus., Inc., 293 F. Supp. 164, 170
(S.D.N.Y. 1968) (certifying class of 35-70 individuals).
Likewise, because the identity of the members of Class A and Class B are readily
ascertainable by objective review of Defendants’ business records, there is no credible
issue concerning ascertainability of the class members. “The primary focus of the
ascertainability requirement is whether the class is defined using objective criteria that
establish a membership with definite boundaries.” In re Namenda Indirect Purchaser
Antitrust Litig., 338 F.R.D. 527, 549 (S.D.N.Y. 2021) (internal quotation and citation
omitted). The Second Circuit has described ascertainability as a “modest threshold
requirement” that precludes certification “only…if a proposed class definition is
indeterminate in some fundamental way.” Id. at 269; see also Vargas v. Howard, 324
F.R.D. 319, 330 (S.D.N.Y. 2018) (same); Zivkovic v. Laura Christy LLC, 329 F.R.D. 61,
76 (S.D.N.Y. 2018) (same).
2. Common Questions of Law and Fact Exist.
Rule 23(a)(2)’s requirement that “there are questions of law or fact common to the
class” has been characterized as a “low hurdle.” In re Sumitomo Copper Litig., 194 F.R.D.
480, 482 (S.D.N.Y. 2000) (quoting In re Prudential Secs. Litig., 163 F.R.D. 200, 206 n. 8
(S.D.N.Y.1995)). Indeed, courts have held that even one common question of law will
clear this low hurdle. Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 153
(S.D.N.Y. 2002) (quoting 5 Moore’s Federal Practice § 23.23[2]); In re NTL, Inc. Secs.
Litig., No. 02 Civ 3013, 2006 WL 330113, at *6 (S.D.N.Y. Feb. 14, 2006), report and
recommendation adopted, 2006 WL 568225 (S.D.N.Y. March 9, 2006).
Commonality pervades nearly every aspect of the instant case. From a factual
perspective, Plaintiffs and the Class Members have served valid and timely Notices of
Termination on Defendants, thereby vesting their termination rights. Defendants have
-24-
154498.00601/128556302v.8
treated all of the Notices of Termination the same by systematically refusing to honor
their validity, and by raising the same contrived legal defenses to create negotiating
leverage and/or obstacles to the return of the copyrights to the artists. Defendants have
continued to exploit the sound recordings identified in the notices after the effective
termination date and otherwise restricted or interfered with the artists’ rights to exploit
the sound recordings. Defendants wrongfully refused to honor these terminations solely
based on their false and/or erroneous view of the law, and nothing else. From Defendants’
failure and/or refusal to accept and honor the Notices of Termination to their exploitation
of those sound recordings, the Defendants’ misconduct giving rise to the Plaintiffs and
the Class Members’ claims is exactly the same. See In re Risk Mgmt. Alts., Inc. Fair Debt
Collection Practices Act Litig., 208 F.R.D. 493, 505 (S.D.N.Y. 2002) (holding that
commonality was “clearly satisfied” because “the claims of all potential [c]lass members
[were] based upon the same [conduct],” i.e., whether the collection letters contained
language violative of the FDCPA).
The same level of commonality exists with respect to the legal issues. Defendants’
liability is precisely the same for all of the Notices of Termination, and the recording
artists of those sound recordings (and their heirs and personal representatives) have the
same claims for liability and the same claims for statutory damages. In fact, the answer
to the legal question of whether Defendants’ failure to honor the Notices of Termination
subjects it to liability is the same regardless of the particular sound recording identified
in a particular Notice of Termination. See, e.g., David v. Showtime/The Movie Channel,
Inc., 697 F. Supp. 752, 756 (S.D.N.Y. 1988) (certifying class and finding “[n]umerous
questions of both fact and law are common to the class including whether defendant
violated the federal copyright laws . . .”); see also Spencer, 2013 WL 1040052, at *17
(S.D.N.Y. 2013) (certifying class and finding that the legal question of whether the
-25-
154498.00601/128556302v.8
defendant “complied with the [New York Labor Law’s] notice requirement” was “common
to all members of the notice subclass”); Ventura v. New York City Health and Hosps.
Corp., 125 F.R.D. 595, 599 (S.D.N.Y. 1989) (holding the common issues of the proposed
class included the determination of whether the defendant hospital “reasonably notified
[its] employees of their drug testing procedures and policies, and whether the failure to
do so violate[d the] employees’ civil and constitutional rights . . .”).
The common issues in this case lend themselves perfectly to a common resolution.
Indeed, all of the issues arise from the same factual predicate—Defendants’ failure to
honor the Notices of Termination and their exploitation of sound recordings after the
effective date of termination. From this predicate, the issues become whether Defendants
must honor the Notices of Termination and whether Defendants’ exploitation or
distribution of the sound recordings identified in the Notices of Termination after the
effective date of termination constitutes copyright infringement. And these issues are the
same across Class A. Moreover, Defendants’ fictitious “work made for hire” defense is
common to all members of Class A and B because: (1) in virtually all of the recording
agreements with Defendants and their predecessors, the contrived “work made for hire”
language (or the English law equivalent) is found and Defendants rely on that language
in disclaiming the termination rights of each Class member; or (2) in the instances where
such provisions are absent from the recording agreements, Defendants still assert the
same defense. Exhibit 23.
This manufactured defense fails uniformly and entirely as a matter of law because
the Copyright Act’s termination provisions – specifically Section 203(a)(5) – expressly
prohibit any clause, contractual language, or agreement that would deprive an author of
his or her termination rights. 17 U.S.C. § 203(a)(5). It states: “Termination of the grant
may be effected notwithstanding any agreement to the contrary, including an agreement
-26-
154498.00601/128556302v.8
to make a will or to make any future grant.” Id. (emphasis added). “Without going out
on a limb, the plain meaning of the provision is that one who holds a termination right
may exercise that right notwithstanding any agreement that would stand in the way.” 3
Nimmer § 11.07[E][4][a] (2022). Nimmer has identified four categories of agreements
that violate Section 203(a)(5): 13 (1) an express agreement not to terminate a grant; (2) a
penalty clause that acts in contravention of termination; (3) an agreement
mischaracterizing the copyrighted work so as to avoid a termination right; and (4) a
rescission and re-grant of a testamentary transfer. 3 Nimmer § 11.07; see also Menell
and Nimmer, Pooh-Poohing Copyright Law’s ‘Inalienable’ Termination Rights, 57 J.
COPYRIGHT SOC’Y U.S.A. 799, 824-25 (2010). Defendants’ fictitious “work made for hire”
language in the recording agreements exemplifies the third category. They attempt to
avoid or circumvent Plaintiffs’ termination rights merely by mischaracterizing the sound
recordings in question as “works made for hire.”
Leading copyright scholars and courts alike have found that using contractual
language to mischaracterize a relationship as one purporting to be a “work made for hire”
“will not in itself” magically convert any resulting works into those “made for hire.”
Nimmer on Copyright § 5.03[B][1][b][ii]; see also F. Jay Dougherty, Not A Spike Lee
Joint? Issues in the Authorship of Motion Pictures Under U.S. Copyright Law, 49 UCLA
L. R EV. 225, 317-18 (2001) (“Parties cannot simply agree that works not within the scope
of employment are works made for hire with the employer deemed the author.”). 14 Courts
are well aware that hiring parties attempt to circumvent copyright law by including bare
13 This likewise applies to its virtually identical counterpart that applies to pre-1978
grants, § 304(c)(4).
14 Goldstein on Copyright § 4.3 (3d ed. 2018) (noting that, unless the work satisfies
the “objective” criteria of the work-for-hire doctrine, “A’s express agreement that the work
prepared by A will constitute a work made for hire by B will not suffice to make the work
one for hire, nor to make B the author”).
-27-
154498.00601/128556302v.8
statements in a contract that a particular work is “for hire;” and they have held that such
a “bare statement ‘says nothing about the scope of an individual’s employment and cannot
suffice on its own’ to vest ownership in an employer.” TD Bank N.A. v. Hill, 928 F.3d 259,
272 (3d Cir. 2019). For example, in Marvel Characters, Inc. v. Simon, the Second Circuit
held that “[t]he parties…may not agree that a work shall be deemed one made ‘for hire’ in
order to avoid the termination provisions if a ‘for hire’ relationship…does not in fact exist
between them.” 15 310 F.3d 280, 291 (2d Cir. 2002) (citing 3 Nimmer §
11.07[A][2])(2000)). In so holding, the Second Circuit invalidated an agreement
containing similar artifice “works made for hire” language as an “agreement to the
contrary,” precisely because giving it effect would defeat the author’s termination right.
Id. at 292.
Other courts agree. See Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 32 (2d
Cir. 2015) (citing Section 203(a)(5) and noting that termination rights “cannot be
contracted away”); see also Donaldson Pub. Co. v. Bregman, Vocco & Conn, Inc., 375
F.2d 639, 640-43 (2d Cir. 1967) (holding that a composer’s work was not created as a
work made for hire for defendant even though his contract with defendant provided him
with a drawing account during his “employment”); Horror Inc. v. Miller, 335 F. Supp. 3d
273, 319 (D. Conn. 2018), aff’d, 15 F.4th 232 (2d Cir. 2021) (citing Marvel, 310 F.3d at
290-91, and noting that “writers cannot waive their termination right by contract”); TD
Bank N.A. v. Hill, 928 F.3d 259, 272-73 (3d Cir. 2019) (same).
15 The Second Circuit also cautioned that “[i]f an agreement between an author and
publisher that a work was created for hire were outside the purview of § 304(c)(5), the
termination provision would be rendered a nullity; litigation-savvy publishers would be
able to utilize their superior bargaining position to compel authors to agree that a work
was created for hire in order to get their works published.” Marvel, at 290-291.
-28-
154498.00601/128556302v.8
And, logically, this approach makes sense. Congress enacted Section 203(a)(5)
with the Copyright Act of 1976 to fix the termination provisions of the 1909 Act, which
had been watered down by Supreme Court decisions (e.g., Fred Fisher Music Co. v. M.
Witmark & Sons, 318 U.S. 643, 63 S. Ct. 773 (1943)) and had eroded the termination
rights of artists. See Nimmer § 11.07[A](2022) (“After judicial interpretation of the 1909
Act frustrated this intent by upholding advance assignments of renewal terms, Congress
spoke unambiguously in 1976.”). Congress did so “to safeguard ‘authors against
unremunerative transfers.’” Waite, 450 F. Supp. 3d at 438 (quoting H.R. Rep. No. 94-
1476, 124 (Sept. 3, 1976)). “These authors needed statutory protection ‘because of the
unequal bargaining position of authors, resulting in part from the impossibility of
determining a work’s value until it has been exploited.’” 16 Id. The 1976 Act, therefore,
created “an inalienable termination right,” Stewart v. Abend, 495 U.S. 207, 220, 110 S.Ct.
1750, 1765 (1990), to prevent artists from waiving their termination rights by contract.17
16 It is intended to be “broadly applied to invalidate unlawful contracts and liberally

protect termination rights.” Nimmer § 11.07[A](2018) (citing Steinbeck v. McIntosh &
Otis, Inc., 433 F. Supp. 2d 395, 398 (S.D.N.Y. 2006), as amended (July 18, 2006), rev’d
and remanded sub nom. Penguin Grp. (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir.
2008)).
17 In Petrella v. Metro-Goldwyn-Mayer, Inc., the Supreme Court rejected the
defendant’s argument that (in the laches context), it was prejudicial and unfair for courts
to examine old copyright matters, sometimes from decades ago:
[Defendant] points to the danger that evidence needed or useful to defend against
liability will be lost during a copyright owner’s inaction. Recall, however, that
Congress provided for reversionary renewal rights exercisable by an author's heirs,
rights that can be exercised, at the earliest for pre–1978 copyrights, 28 years after
a work was written and copyrighted. At that time, the author, and perhaps other
witnesses to the creation of the work, will be dead. Congress must have been aware
that the passage of time and the author's death could cause a loss or dilution of
evidence. Congress chose, nonetheless, to give the author’s family “a second chance
to obtain fair remuneration.”
572 U.S. 663, 683, 134 S.Ct.1962, 1976 (2014) (citing Stewart v. Abend, 495 U.S. 207,
220, 110 S.Ct. 1750, 1759-60 (1990)) (internal citations omitted).
-29-
154498.00601/128556302v.8
See Marvel, 310 F.3d at 290 (discussing the purposes of the termination right in the
context of § 304(c)). And where, as here, “Congress has shown that it knows how to [adopt
a measure] in express terms,” TD Bank, 928 F.3d at 272-73 (citing Kimbrough v. United
States, 552 U.S. 85, 103, 128 S.Ct. 558, 571 (2007); Barnhart v. Sigmon Coal Co., 534
U.S. 438, 452, 122 S.Ct. 941, 951 (2002)), it would be “particularly inappropriate” to
ignore those express terms and permit Defendants to rely on artifice contractual language
in contravention of clear statutory text and intent.
Indeed, this Court aptly recognized Defendants’ flawed position because accepting
their scheme would eviscerate the purpose of Section 203:
Defendant’s argument is weakened further by the music industry’s practice

of frequently inserting “work made for hire” language into recording
contracts. Its position requires that many artists, often early in their careers,
would confront a choice when presented with a “works made for hire” provision.
1 Nimmer on Copyright § 5.03 (2019) (noting that since sound recordings earned
copyright protection in 1972, “virtually all contracts” between artists and
recording companies include “work made for hire” provisions). They could refuse
to sign the contract and jeopardize their chance for the record company to record
or distribute the artist’s music. Or the artist could sign the contract and then bring
a claim within three years to dispute the effect of the “work made for hire”
provision in order to protect the copyright. Either outcome would be
inconsistent with Section 203. The first would exemplify the unequal
bargaining power Section 203 sought to correct. The second would
render Section 203 meaningless, as its very purpose is to provide a
mechanism by which artists can reclaim their copyright after the work
has had time to become more valuable. Defendant’s argument simply
does [not] withstand scrutiny in light of the unequivocal purpose of the
termination provision.
Waite, 450 F. Supp. 3d at 438 (emphasis added).
3. Plaintiffs Have Claims Typical of the Classes’ Claims.
The claims of the class representative also must be “typical” of the claims of the
class. Fed. R. Civ. P. 23(a)(3). Typicality is “satisfied when each class member’s claim
arises from the same course of events, and each class member makes similar legal
arguments to prove the defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376
-30-
154498.00601/128556302v.8
(2d Cir. 1997) (quoting In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir. 1992).
Where, as here, the same unlawful conduct affected Plaintiffs and the class members, it is
not necessary that “the factual predicate of each claim be identical to that of all class
members.” Shakhnes ex rel. Shakhnes v. Eggleston, 740 F. Supp. 2d 602, 625 (S.D.N.Y.
2010) (citations omitted), aff’d in part and vacated in part on other grounds, 689 F.3d
244 (2d Cir. 2012); see also Robidoux, 987 F.2d at 936-37 (“When it is alleged that the
same unlawful conduct was directed at or affected both the named plaintiff and the class
sought to be represented, the typicality requirement is usually met irrespective of minor
variations in the fact patterns underlying individual claims.” ). This requirement is “not
demanding.” Fogarazzo v. Lehman Bros., Inc., 232 F.R.D. 176, 180 (S.D.N.Y. 2005).
In the Second Circuit, analysis of Rule 23(a)(3)’s typicality requirement often
converges with that of commonality. See Marisol A., 126 F.3d at 376 (citing General Tel.
Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13, 102 S. Ct. 2364, 2370 (1982)).
Therefore, typicality, like commonality, has been found where plaintiff’s claims arise from
the same unlawful practices or legal theories. See Robidoux, 987 F.2d at 936 (“Rule
23(a)(3)’s typicality requirement is satisfied when each class member’s claim arises from
the same course of events and each class member makes similar legal arguments to prove
the defendant’s liability.”); Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 337 (S.D.N.Y. 2010)
(finding the commonality and typicality requirements to be met where class members
were subject to the same employment policies).
Plaintiffs’ claims are more than typical of the other class members; they are
identical. Plaintiffs are asserting claims against Defendants that arise “from the same
conduct from which the other class members’ claims and injuries arise.” Foley v.
Transocean Ltd., 272 F.R.D. 126, 131 (S.D.N.Y. 2011). The factual allegations and the
proof necessary to support them arise from the same conduct by Defendants. See Brown
-31-
154498.00601/128556302v.8
v. Giuliani, No. 98 Civ 7743, 2000 WL 869491, at *7 (S.D.N.Y. June 29, 2000) (holding
that the named plaintiffs’ claims were typical of the class members because they arose
“from the [defendants’] same course of conduct”). Moreover, none of the conduct at issue
in the case is unique to Plaintiffs and the class members all have a common or similar
injury that has resulted from the same conduct. See Guippone v. BH S&B Holdings, LLC,
No. 09 Civ 1029, 2011 WL 1345041, at *6 (S.D.N.Y. Mar. 30, 2011) (holding that
typicality was met because the defendant engaged in a “single course of conduct resulting
in injury to all [c]lass [m]embers, including [the named plaintiff]”). Plaintiffs are in
precisely the same situation with respect to Defendants as the other recording artists and
their successors, and accordingly have the same interests as those other owners. The
typicality requirement is satisfied for the same reasons that the commonality requirement
is satisfied.
4. Plaintiffs and Counsel Will Adequately Represent the

Classes.
The final requirement of Rule 23(a) is that the representative party must fairly and
adequately represent the interests of the class. Fed. R. Civ. P. 23(a)(4). Adequacy is a
two-pronged analysis: (1) a Plaintiff must not have claims antagonistic to or in conflict
with other class members, and (2) class counsel must be qualified, experienced, and
generally able to conduct the litigation. See Marisol A., 126 F.3d at 378.
The requirements of Rule 23(a)(4) have been met and will continue to be met. The
Plaintiffs have identical claims to those of its putative class members, and the Plaintiffs
seek the exact same type of relief against Defendants. There is no conflict of interest
between the Plaintiffs and the Classes they seek to represent; indeed, their interests are
fully aligned. Plaintiffs have willingly become the standard bearers for a cause that is not
only critically important to themselves, but also to all of the artists who depend on the
authorized exploitation of their recordings. Plaintiffs have expended considerable time
-32-
154498.00601/128556302v.8
and effort in prosecuting this action, including working with counsel, reviewing
documents, responding to discovery requests, and having their depositions taken. 18 Each
of the Plaintiffs has demonstrated sufficient basic familiarity with the Section 203
termination claims raised and has shown determination and commitment to vindicating
these important, inalienable rights. 19
As for the Plaintiffs’ counsel, the interdisciplinary team from Blank Rome LLP and
Cohen Music Law are more than qualified, experienced, and able to conduct the litigation
on behalf of the Classes. Plaintiffs’ counsel have vigorously and competently litigated the
Section 203 claims at issue here, overcoming UMG’s motion to dismiss, obtaining leave
to file a Second Amended Complaint and navigating Defendants’ vigorous opposition to
discovery of the class claims. Plaintiffs’ counsel completed all document and deposition
discovery during the global pandemic by targeting discovery focused on the core
documents and information necessary to prove Plaintiffs’ claims and otherwise address
any alleged defenses.
18 Ex. 2, Sulton Dep. at 13:11-14:21, 15:6-12; 16:6-23, 17:1-5, 188:9-189:2, 212:4-

215:20, 224:5-225:3; Ex. 17, Straw Dep. at 19:4-20:13, 34:24-35:18, 37:12-16, 115:9-
118:16, 126:6-20, 135:14-138:14; Ex. 6, Phillips Dep. at 12:6-13:12, 22:5-19 (“Well, I
am to review the documents, participate with as much candor as possible and represent
myself, thusly, in a larger sense, my classmates accordingly.”); Ex. 7, Sobol Dep. at 11:10-
25, 38:4-39:5, 77:24-78:1; Ex. 11, Wynn Dep. at 12:21-13:7, 109:1-110:24, 139:9-140:7;
Ex. 12, Pellish Dep. at 14:3-18, 15:1-17:23, 129:22-24 (“I’ve had conversations with my
attorneys and I’ve read the documents”); Ex. 13, Mehaffey Dep. at 9:8-10:21, 12:7-25,
16:2-17:17, 19:15-20:6, 70:13-76:13.
19 Sulton Decl. at ¶¶ 15-16; Ex. 2, Sulton Dep. at 17:1-5, 198:25-199:22, 200:13-25,
212:4-215:20; Straw Decl. at ¶¶ 14-15; Ex. 17, Straw Dep. at 24:10-21; 111:4-112:15,
115:9-118:16, 121:8-22, 122:16-21, 123:14-126:20, 127:20-128:12; Phillips Decl. at
¶¶ 15-16; Ex. 6, Phillips Dep. at 13:15-14:6, 16:3-17:15, 19:15-20:2, 23:2-20, 26:19-
27:3; Sobol Decl. at ¶¶ 15-16; Ex. 7, Sobol Dep. at 76:10-15, 81:10-17; Wynn Decl. at ¶¶
15-16; Ex. 11, Wynn Dep. at 19:24-20:5, 21:11- 27:10, 54:24-55:5 (“I’m representing a
class of artist in this suit and I am respectful of that – of being part of that process and
being part of the class of artists.”); Pellish Decl. at ¶¶ 15-16; Ex. 12, Pellish Dep. at 99:8-
100:1, 102:2-14, 104:6-106:1; 140:19-142:22; Mehaffey Decl. at ¶¶ 15-16; Ex. 13,
Mehaffey Dep. at 12:22-25, 76:18-77:2.
-33-
154498.00601/128556302v.8
Roy W. Arnold is a partner with Blank Rome LLP (“Blank Rome”) who co-chairs
the firm’s national class action team, which has been recognized as a “go to” class action
practice. He has litigated more than 300 class action lawsuits to conclusion in 20 states
over the course of more than 25 years. Before joining Blank Rome in January 2019, he
was a partner at Reed Smith LLP where he practiced for more than 23 years and likewise
chaired the firm’s national class action team. He has tried a class action to verdict and
has tried cases for both plaintiffs and defendants throughout his career focusing on
complex class and commercial litigation. He has served as co-lead counsel in this case
since arguing in opposition to UMG’s motion to dismiss and has served as the principal
liaison with Defendants’ lead counsel, Mr. Rollin Ransom. Declaration of Roy W. Arnold
(“Arnold Decl.”) ¶¶ 2-4, 6-7, 9-10.
Gregory M. Bordo is a partner who co-chairs Blank Rome’s Litigation Department
and has over 30 years of experience in handling complex litigation and class action
lawsuits in federal and state courts. He has handled numerous complex business matters,
with a primary focus on business, real estate and fiduciary issues. Declaration of Gregory
M. Bordo (“Bordo Decl.”) ¶¶ 2-3. David M. Perry is a partner who co-chairs Blank
Rome’s Intellectual Property Group and has over 22 years of experience in handling
copyright and other intellectual property matters. He also is a part-time musician and
recording artist as a member of a rock band called Athensville. He has handled numerous
complex business and entertainment matters, which have involved trademark
infringement, copyright infringement, and licensing. Over the course of his practice, he
has worked on all facets of copyright matters, from clearance to prosecution, from
enforcement to litigation. He routinely counsel clients on identifying copyrightable
material, obtaining copyright registrations, and preparing for copyright litigation. Those
matters have ranged from music to fabric designs, from novels to software programs.
-34-
154498.00601/128556302v.8
Declaration of David M. Perry (“Perry Decl.”) ¶¶ 2-4. Ryan E. Cronin is a partner
resident in Blank Rome’s New York office who has over 14 years of experience litigating
complex business disputes. Declaration of Ryan E. Cronin (“Cronin Decl.”) ¶¶ **-**.
Heidi G. Crikelair is a Blank Rome partner with over ten years of experience in litigating
a broad range of cases in federal and state courts, including class actions. She has been
involved in numerous matters before this Court and has handled complex disputes across
a range of industries, including jury and non-jury trials in numerous jurisdictions.
Declaration of Heidi G. Crikelair (“Crikelair Decl.”) ¶¶ 2-3.
Evan S. Cohen is the principal of Cohen Music Law and is an entertainment and
music lawyer with more than 35 years of litigation experience. He represents more than
one hundred recording artists who have sent notices of termination to Defendants. He
has litigated extensively in the copyright area as well as against record labels. He has
represented musicians, bands, songwriters, music publishers and independent record
labels. He also served as co-counsel in the class action Flo & Eddie Inc. v. Sirius XM Radio
Inc., No. CV 13-5693 PSG, 2014 WL 4725382 (C.D. Cal. Sept. 22, 2014), and has been
representing clients in litigation specifically involving copyright terminations since the
mid-1980s (see, e.g., Marascalco v. Fantasy, Inc., 953 F.2d 469 (9th Cir. 1991), cert.
denied, 504 U.S. 931, 112 S.Ct. 1997 (1992)). Declaration of Evan Cohen (“Cohen
Decl.”) ¶¶ 2-5.
Maryann R. Marzano is Of Counsel to Cohen Music Law with over 40 years of
litigation experience. Ms. Marzano has litigated numerous complex litigation matters in
federal, state and foreign jurisdictions, as well as class action lawsuits involving securities,
copyright and other business-related claims. She has handled many significant business
and entertainment matters, which have involved breach of contract, unfair competition,
copyright infringement, and music royalty claims. She has successfully represented both
-35-
154498.00601/128556302v.8
plaintiffs and defendants in class action matters. On the plaintiffs’ side, she helped
achieve a $25 million settlement for recording artists in a multi-district federal class
action copyright infringement case against Sirius XM involving the misappropriation and
unlawful exploitation of pre-1972 sound recordings. She also successfully negotiated a
settlement with a $43.5 million cash value and more than $112.55 million in total
financial value for class member recording artists in a federal class action copyright
infringement case against Spotify in the Second Circuit, involving claims that Spotify
made music available online without securing mechanical rights from the tracks’
composers. Declaration of Maryann R. Marzano (“Marzano Decl.”) ¶¶ 2-4
The qualifications, experience and conduct of these attorneys, along with other
experienced attorneys at Blank Rome, more than satisfies the adequacy of counsel
requirement. See, e.g., Lee v. ABC Carpet & Home, 236 F.R.D. 193, 204 (S.D.N.Y. 2006)
(finding counsel adequate “based on the past experiences and current conduct of
Plaintiff’s counsel”). Blank Rome has demonstrated its firm commitment to vindicating
the artists’ Section 203 rights by advancing the litigation expenses in this case, including
engaging Stefano Vranca of Ankura to act as an expert witness for purposes of calculating
damages on a class-wide basis for Class A. Exhibit 25, Vranca Dep. at 22:15 to 24:4
(estimating expert fees totaling more than $140,000 advanced by Blank Rome).
C. The Requirements of Rule 23(b)(3) Are Met.
Rule 23(b)(3) requires a finding that common questions of law or fact
predominate, and a class action is the superior means of adjudicating the controversy
fairly and efficiently. Fed. R. Civ. P. 23(b)(3); Seijas v. Republic of Argentina, 606 F.3d
53, 57 (2d Cir. 2010).
-36-
154498.00601/128556302v.8
1. Common Questions of Law or Fact Predominate as to

Plaintiffs’ Claims.
The touchstone of predominance is whether the proposed class is “sufficiently
cohesive to warrant adjudication by representation.” See Amchem Prods. v. Windsor,
521 U.S. 591, 623, 117 S.Ct. 2231, 2249 (1997); accord In re Nassau County Strip Search
Cases, 461 F.3d 219, 225 (2d Cir. 2006); In re Namenda Direct Purchaser Antitrust
Litig., 331 F. Supp. 3d 152, 204 (S.D.N.Y. 2018); Tiro v. Pub. House Invs., LLC, 288
F.R.D. 272, 280 (S.D.N.Y. 2012). Rule 23(b)(3) “calls only for predominance, not
exclusivity, of common questions.” Shelter Realty Corp. v. Allied Maint. Corp., 75 F.R.D.
34, 37 (S.D.N.Y. 1977). The predominance requirement is satisfied if “resolution of some
of the legal or factual questions that qualify each class member’s case as a genuine
controversy can be achieved through generalized proof, and if these particular issues are
more substantial than the issues subject only to individualized proof.” Meyer v. U.S.
Tennis Ass’n, 297 F.R.D. 75, 87 (S.D.N.Y. 2013) (quoting Moore v. PaineWebber, Inc.,
306 F.3d 1247, 1252 (2d Cir. 2002)).
Here, the legal and factual questions do not vary from class member to class
member and may be determined without reference to the individual circumstances of any
particular class member. Defendants have uniformly rejected each Notice of Termination
that it has received, and Defendants have continued to reproduce and perform the sound
recordings subject to each Notice of Termination in exactly the same way. Defendants’
rejections of the Notices of Termination and subsequent conduct are the same, regardless
of the person that served the Notice of Termination and the sound recording(s) identified
in the notices.
At a minimum, with respect to Defendants’ conduct, the following factual and legal
issues are the same for all class members:
-37-
154498.00601/128556302v.8
• Whether sound recordings can ever be considered “a work made for hire”
because the definition of “a work made for hire” set forth in §101 of the
Copyright Act does not include sound recordings as being one of the
enumerated types of “specially ordered” or “commissioned” works that can
be a work made for hire;
• Whether the release of sound recordings that were created by a particular

recording artist in “album” form, as is typical in the music industry,
constitutes a “contribution to a collective work,” or creates a “compilation,”
as those terms are used in §101 of the Copyright Act, thereby transforming
the sound recordings into “a work made for hire”;
• Whether a foreign choice of law provision in a recording agreement has any

effect upon the application of United States copyright law to issues relating
to the application of the Copyright Act (and Section 203 specifically) to the
United States copyrights at issue, or whether such a clause raises viable
claims of “breach of contract” against the recording artists for the act of
exercising their rights under United States copyright law;
• Whether Defendants’ positions regarding “work made for hire” clauses

violate Section 203(a)(5) of the Copyright Act;
• Whether sound recordings created and delivered pursuant to a recording

agreement are “specially ordered” or “commissioned” as those terms are
used in Section 101 of the Copyright Act, thereby transforming the sound
recordings into “a work made for hire”;
• Whether the exercise by recording artists of their rights under Section 203
of the Copyright Act to terminate the original grant and to thereafter exploit
the sound recordings after the effective date of termination is a breach of
contract by the recording artists of a clause in the recording agreement that,
according to UMG, provides that recording artists may never exploit the
sound recordings themselves;
• Whether Defendants’ systemic conduct constitutes willful infringement;
• The basis and method for determining and computing damages, including
statutory damages.
Each of the foregoing issues unites the class, and all class members will have to
proffer the exact same evidence and make the exact same legal arguments in order to
establish their claims against Defendants as the Plaintiffs will. There are no issues raised
by the Plaintiffs and no plausible defenses asserted by Defendants that do not apply across
the board to all other members of the class, and the same evidence will be used to prove
-38-
154498.00601/128556302v.8
or disprove each element of the claims on a simultaneous, classwide basis. There are no
unique, unshared, individual, or atypical issues of fact or law among the class members.
The only factual issue that varies from class member to class member is which
sound recordings they own. However, these types of individual issues do not defeat or
even undermine a finding of predominance. Leiber v. Bertelsmann AG (In re Napster,
Inc. Copyright Litig.), No. C MDL-00-1369, 2005 WL 1287611, at *7 (N.D. Cal. June 1,
2005) (rejecting argument that “proving ownership and registration of each of the
allegedly infringed musical compositions, showing that each of those works was
distributed via the Napster network, and establishing their right to collect actual or
statutory damages under the Copyright Act” defeats finding of predominance); see also
David v. Showtime/Movie Channel, Inc., 697 F. Supp. 752, 757 (S.D.N.Y. 1988) (court
certified a class of movie copyright holders and rejected the argument that “incidental
differences” such as proof of copyright ownership defeat commonality).
Moreover, while individual compensatory damages for copyright infringement
may vary to a degree based on the commercial success of the artist and the relevant work,
such damages are readily calculable from Defendants’ business records. More
importantly, the methodology used by Plaintiffs’ damages expert, Mr. Stefano Vranca,
Senior Managing Director of Ankura Consulting Group, for the calculation of statutory
damages is eminently suitable for a class action. In fact, Mr. Vranca used a statutory
damages methodology that originated in copyright infringement actions filed by
Defendants themselves, including the application of their own methodology of calculating
statutory damages on per work or per track basis. Vranca Dep. at 137:6-140:13; 151:4-
151:25. The copyright terminations at issue involve thousands of sound recordings.
-39-
154498.00601/128556302v.8
2. A Class Action Is the Superior and Most Efficient Method

for Adjudicating This Controversy.
Not only do the factual and legal issues in this case predominate, but it is clear that
a class action is superior to other available methods for the fair and efficient adjudication
of the controversy. In making this determination, Fed. R. Civ. P. 23(b)(3) provides a non-
exhaustive list of factors that can be considered, including: (a) the interest of members of
the class in individually controlling the prosecution or defense of separate actions, (b) the
extent and nature of any litigation concerning the controversy already commenced by or
against members of the class, (c) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum, and (d) the difficulties likely to be
encountered in the management of a class action.
Here, classwide resolution of the issues is fairer and more efficient than any other
procedure available for resolving the factual and legal issues raised by the Plaintiffs’
claims. A multiplicity of litigation presenting the same facts, evidence, and law is neither
a good use of the Court’s resources or fair to those owners of sound recordings who are
confronted with Defendants’ massive resources and a willingness to spend those
resources on lawyers. See Amchem Prods., 521 U.S. at 617, 117 S.Ct at 2246 (holding
that Rule 23(b)(3) aims to vindicate “the rights of groups of people who individually
would be without effective strength to bring their opponent into court at all”); American
Pipe & Constr. Co. v. Utah, 414 U.S. 538, 551, 94 S.Ct. 756, 765 (1974) (Rule 23 is
designed to avoid the “multiplicity of activity” on the part of courts and litigants). Further,
requiring this case to be litigated on an individual basis would risk disparate results in
nearly identical suits and exponentially increase the cost of litigation. See Cromer Fin.
Ltd. v. Berger, 205 F.R.D. 113, 133 (S.D.N.Y. 2001). A class action, by contrast, would
achieve economies of time and effort, resolving common legal and factual issues.
-40-
154498.00601/128556302v.8
As courts have explained in finding superiority satisfied:
Here, the obvious alternative to a class action would be for Plaintiffs

to bring individual suits against Defendants. This would be grossly
inefficient, costly, and time consuming because the parties, witnesses, and
courts would be forced to endure unnecessarily duplicative litigation. The
millions of class members are dispersed across the country, each with
relatively similar claims. It can reasonably be anticipated that many of the
individual claims will involve relatively insubstantial amounts of money
such that a class action is perhaps the only feasible way for Plaintiffs to
pursue those claims. Thus, the Court is persuaded that a class action is by
far the most superior method for resolving the claims at issue in this lawsuit.
In re Universal Serv. Fund Tel. Billing Practices Litig., 219 F.R.D. 661, 679 (D. Kan.
2004); see also Seijas, 606 F.3d at 58 (“However, the district court correctly determined
that proceeding individually would be prohibitive for class members with small claims.
In such circumstances, the class action device is frequently superior to individual
actions.”). Certifying the proposed Classes here will enable Plaintiffs, regardless of the
size of his or her individual stake, to seek to vindicate these important and inalienable
termination rights. Accordingly, a class action provides a far more efficient vehicle for
resolution of a controversy affecting all the class members in a single proceeding.
D. Certification of a Class for Final Injunctive and Corresponding

Declaratory Relief Under Rule 23(b)(2) Is Appropriate.
To fall within Rule 23(b)(2), the proposed classes must meet two factors:
(1) Defendants’ conduct must “apply generally” to the classes, and (2) final injunctive or
declaratory relief must be sought in favor of the class. Fed. R. Civ. P. 23(b)(2). Unlike
Rule 23(b)(3) class actions, there is no requirement under Rule 23(b)2) that common
questions predominate over individual questions, or that the class action be superior to
other available methods for the fair and efficient adjudication of the controversy. See
Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 201 F.R.D. 326, 334
(S.D.N.Y. 2001); Adames v. Mitsubishi Bank, Ltd., 133 F.R.D. 82, 91 (E.D.N.Y. 1989)
(“The fact that there is a factual dispute concerning whether the requirement that
-41-
154498.00601/128556302v.8
defendant acted on grounds generally applicable to the class is satisfied will not bar class
certification.”) (citing 7A Wright, Miller & Kane § 1775).
Rule 23(b)(2) is particularly suited for mass copyright infringement cases such as
this, where a single practice by the defendant infringes the rights of numerous copyright
owners. In fact, Rule 65(f) specifically recognizes an injunctive remedy for copyright
claimants, and the Copyright Act expressly provides a process for seeking injunctive relief
and impounding infringing materials. See Fed. R. Civ. P. 65(f); 17 U.S.C. § 502. Plaintiffs
seek permanent injunctive relief on behalf of the proposed Classes. SAC, Prayer at C.
Moreover, Plaintiffs seek declaratory relief in the form of a finding by the Court that such
conduct is infringing. SAC ¶¶ 160-189 (Count II); SAC, Prayer at B. Because such relief
would be enjoyed by all class members whose effective termination date has come and
gone, Plaintiffs should be permitted to request such relief on behalf of those class
members.
Moreover, Defendants have engaged in a pattern and practice of ignoring effective
dates of termination and Plaintiffs seek systematic reform through injunctive and
declaratory relief. Defendants have acted on grounds generally applicable to the entire
class and equitable relief for the entire class will be appropriate. See Marisol A., 126 F.3d
at 378 (approving Rule 23(b)(2) class where injuries “stem from central and systemic
failures” to prevent illegal conduct); Nicholson v. Williams, 205 F.R.D. 92, 99 (E.D.N.Y.
2001) (collecting cases); Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir. 1994) (Rule
23(b)(2) satisfied because “plaintiffs seek injunctive relief and they predicate the lawsuit
on the defendants’ acts and omissions with respect to” the class).
Moreover, given Defendants’ demonstrated pattern of engaging in such conduct,
injunctive and declaratory relief are of paramount importance to the proposed Classes.
The need for injunctive relief to compel Defendants to cease their unlawful conduct and
-42-
154498.00601/128556302v.8
to resolve its lingering impact on the copyrights of the putative class is critical.
Accordingly, the Classes satisfy the requirements of Rule 23(b)(2) certification.
V. CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request that the Court enter
an Order that: (1) certifies Class A and Class B pursuant to Rule 23(a), (b)(3) and (b)(2);
(2) appoints the named Plaintiffs as the Class Representatives; (3) appoints the law firms
of Blank Rome LLP and Cohen Music Law as co-Class Counsel; (4) directs notice be sent
to Class Members informing them of the pendency of this class action; and (5) for such
other relief as is necessary and appropriate.
Dated: New York, New York Respectfully submitted,

April 15, 2022
BLANK ROME LLP
/s/ Roy W. Arnold

Ryan E. Cronin
Roy W. Arnold (admitted pro hac vice)
Gregory M. Bordo (admitted pro hac vice)
David M. Perry (admitted pro hac vice)
Heidi G. Crikelair
Jillian M. Taylor (admitted pro hac vice)
1271 Avenue of the Americas
New York, NY 10020
Telephone (212) 885-5000
COHEN MUSIC LAW

Evan S. Cohen (admitted pro hac vice)
Maryann R. Marzano (admitted pro hac vice)
104 West Anapamu Street, Suite K
Santa Barbara, CA 93101-3126
Telephone: (805) 837-0100
Counsel for Plaintiffs and the proposed Classes
-43-
154498.00601/128556302v.8
CERTIFICATE OF SERVICE
I hereby certify that on April 15, 2022, the foregoing was electronically filed
through the Court’s CM/ECF system and thereby served on the following recipients:
Melanie Berdecia, Esquire

[email protected]
Ariel Atlas
[email protected]
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Rollin A. Ransom, Esquire

[email protected]
Lisa M. Gilford, Esquire
[email protected]
Adriane Peralta, Esquire
[email protected]
Lauren M. De Lilly, Esquire
[email protected]
Sidley Austin LLP
555 West 5th Street, Suite 4000
Los Angeles, CA 90013
Richard Stephen Mandel, Esquire

[email protected]
Thomas Kjellberg, Esquire
[email protected]
Cowan, Liebowitz & Latman, P.C.
114 West 47th Street
New York, NY 10036
Counsel for Defendants
By: /s/ Roy W. Arnold

Roy W. Arnold
Counsel for Plaintiffs and the Classes
154498.00601/128556302v.8

Waite v. UMG

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Waite v. UMG

Uploaded by

Copyright:

Available Formats

Case 1:19-cv-01091-LAK Document 150 Filed 04/15/22 Page 1 of 51

IN THE UNITED STATES DISTRICT COURT

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT

BLANK ROME LLP

COHEN MUSIC LAW

Adames v. Mitsubishi Bank, Ltd.,

Amchem Prods. v. Windsor,

American Pipe & Constr. Co. v. Utah,

Baldwin v. EMI Feist Catalog, Inc.,

Bolanos v. Norwegian Cruise Lines Ltd.,

Comcast Corp. v. Behrend,

Community for Creative Non-Violence v. Reid,

Cromer Fin. Ltd. v. Berger,

David v. Showtime/The Movie Channel, Inc.,

Donaldson Pub. Co. v. Bregman, Vocco & Conn, Inc.,

Fidelis Corp. v. Litton Indus., Inc.,

Flo & Eddie Inc. v. Sirius XM Radio Inc.,

Fogarazzo v. Lehman Bros., Inc.,

Foley v. Transocean Ltd.,

Fred Fisher Music Co. v. M. Witmark & Sons,

Guippone v. BH S&B Holdings, LLC,

Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York,

Horror Inc. v. Miller,

In re Initial Pub. Offerings Secs. Litig.,

Johansen v. Sony Music Ent. Inc.,

Johansen v. Sony Music Entertainment

Korn v. Franchard Corp.,

Lee v. ABC Carpet & Home,

Leiber v. Bertelsmann AG (In re Napster, Inc. Copyright Litig.),

Marascalco v. Fantasy, Inc.,

Marvel Characters, Inc. v. Simon,

Meyer v. U.S. Tennis Ass’n,

Mtume v. Sony Music Entm’t,

Music Sales Corp. v. Morris,

In re Namenda Direct Purchaser Antitrust Litig.,

In re Namenda Indirect Purchaser Antitrust Litig.,

In re NASDAQ Mkt.-Makers Antitrust Litig.,

In re Nassau County Strip Search Cases,

In re NTL, Inc. Secs. Litig.,

Nw. Nat’l Bank of Minneapolis v. Fox & Co.,

Seijas v. Republic of Argentina,

Shakhnes ex rel. Shakhnes v. Eggleston,

Shelter Realty Corp. v. Allied Maint. Corp.,

Siegel v. Warner Bros Ent. Inc.,

Spencer v. No Parking Today, Inc.,

Spicer v. Pier Sixty LLC,

Stillwater Ltd. v. Basilotta,

In re Sumitomo Copper Litig.,

TD Bank N.A. v. Hill,

Tiro v. Pub. House Invs., LLC,

In re U.S. Foodservice Inc. Pricing Litig.,

In re Universal Serv. Fund Tel. Billing Practices Litig.,

Ventura v. New York City Health and Hosps. Corp.,

In re Vitamin C Antitrust Litig.,

Waite v. UMG Recordings, Inc.,

Yoakam v. Warner Music Gr. Corp.,

Zivkovic v. Laura Christy LLC,

17 U.S.C § 101................................................................................................... 20, 21, 39, 40

17 U.S.C. § 203............................................................................................................ passim

17 U.S.C. § 203(a)(5) .................................................................................................. passim

17 U.S.C. § 203(b)(2) .......................................................................................................... 18

Fed. R. Civ. P. 23......................................................................................................... passim

Fed. R. Civ. P. 23(a)(1) ....................................................................................................... 24

Fed. R. Civ. P. 23(a)(3) ....................................................................................................... 32