Ferrick v. Spotify Complaint PDF
Ferrick v. Spotify Complaint PDF
Ferrick v. Spotify Complaint PDF
2 hgradstein@gradstein.com
3 mmarzano@gradstein.com
4 hgeller@gradstein.com
5 dlifschitz@gradstein.com
Telephone: 323-776-3100
Attorneys for Plaintiff
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Plaintiff,
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v.
Case No.
Plaintiff Melissa Ferrick individually and doing business as Nine Two One
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1.
Under the Copyright Act, there are two separate copyrights in every
2.
Spotify launched the Service in the United States on or about July 14,
17 2011. Since that time, the Service has grown to over 70 million subscribers, raised
18 close to $1 billion in private equity, and obtained a valuation in excess of $8 billion.
19 To achieve that success, Spotify promised its subscribers that it would provide them
20 with [a]ll the music youll ever needfor every moment. But Spotify knew that
21 in order to fulfill its promise, it would either have to delay the launch of the Service
22 (and its process for immediately ingesting and offering new music) until such time
23 as it had obtained all necessary licenses, or it would have to employ a now familiar
24 strategy for many digital music services infringe now, apologize later.
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26 profited handsomely from the music that its sells to its subscribers, the owners of
27 that music (in particular, songwriters and their music publishers) have not been able
28 to share in that success because Spotify is using their music for free.
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4.
The path that Spotify should have chosen is set forth in the Copyright
2 Act. A service like Spotify that is interested in reproducing and distributing musical
3 compositions in phonorecords has two choices: it can negotiate direct licenses with
4 the copyright owners of those musical compositions or it can pursue compulsory
5 licenses under 17 U.S.C. 115. Either a direct license or a compulsory license
6 would have permitted Spotify to make and distribute phonorecords embodying the
7 musical compositions as part of the Service, including by means of digital
8 phonorecord deliveries (DPDs), interactive streaming, and limited downloads.
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11 each copyright owner before or within thirty days after making, and before
12 distributing any phonorecords of the work of its intention use the work. 17
13 U.S.C. 115(b)(1). This notice of intent (or, as it is commonly referred to, an
14 NOI) is not merely a ministerial formality; it is a critical first step in the
15 compulsory licensing process that alerts the copyright owner to the use of its
16 musical composition and, in turn, the right to be compensated for that use. Because
17 of its significance, the failure to timely serve or file an NOI forecloses the
18 possibility of a compulsory license and, in the absence of a negotiated license,
19 renders the making and distribution of phonorecords actionable as acts of
20 infringement. 17 U.S.C. 115(b)(2). Even after sending an NOI, Spotify was then
21 required to timely account to the copyright owner and pay royalties accordingly. 17
22 U.S.C. 115(c).
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6.
For the musical compositions that are at issue in this litigation, Spotify
24 did not negotiate direct licenses and did not avail itself of the compulsory licensing
25 procedures in the Copyright Act. Instead, Spotify chose a third path: it outsourced
26 its licensing and accounting obligations to the Harry Fox Agency (HFA), a music
27 publishing rights organization that was ill-equipped to obtain licenses for all of the
28 songs embodied in the phonorecords distributed by Spotify. As a result, neither
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1 Spotify nor HFA directly licensed or timely issued NOIs for many of the musical
2 compositions embodied in phonorecords that Spotify was reproducing and
3 distributing on a daily basis as part of the Service.
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The known failure by Spotify to obtain licenses for all of the musical
THE PARTIES
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1 Dylan, Ani DiFranco, k.d. Lang, Suzanne Vega, Joan Armatrading, and many
2 others. Ferrick signed in the early 1990s with Atlantic Records, and in 1993
3 released her debut album, Massive Blur, which was then followed by Willing to
4 Wait in 1995. Critical acclaim for Ferricks music has continued to this day.
5 Ferricks 2011 album Still Right Here debuted on Billboards Heat-Seekers
6 Album Chart, won an 8th annual International Acoustic Music Award, and garnered
7 two Independent Music Award nominations. Her 2013 album, The Truth Is, won
8 the 2014 Independent Music Award for Alt-Country Album of the Year and her
9 2015 self-titled album was referred to by the Boston Globe as one of the years
10 most singular albums. Ferrick has been a part time Associate Professor in the
11 Songwriting Department at Berklee College of Music since 2013, and the Artistic
12 Director for Berklees Five Week Summer Program since 2009. Her songs have
13 been streamed approximately one million times by Spotify without a license.
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15 New York, New York. Spotify owns and operates the Service an online
16 interactive music streaming service, which can be principally accessed at
17 www.spotify.com. The Service consists of both an advertisement-supported service
18 that is free to subscribers and a premium service that costs $9.99 per month and is
19 advertisement-free. Spotify is qualified to do business in State of California, and is
20 doing business in California with offices in Los Angeles and San Francisco. Spotify
21 operates the Service in California, has millions of subscribers and end users in
22 California, has entered into contracts and other transactions in California (including
23 with record labels, publishers and developers), and generates millions of dollars in
24 revenue from California residents.
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26 or otherwise) of the defendants named herein as Does 1 through 10, inclusive, are
27 unknown to Plaintiff, who therefore sues said defendants by such fictitious names.
28 Plaintiff will amend this Complaint to allege their true names and capacities when
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1 such have been ascertained. Upon information and belief, each of the Doe
2 defendants herein is responsible in some manner for the occurrences herein alleged,
3 and Plaintiffs and class members injuries as herein alleged were proximately
4 caused by such defendants acts or omissions.
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Plaintiff is informed and believes, and on that basis alleges, that at all
6 times mentioned in this Complaint, Spotify and each of the Doe defendants were the
7 agent of each other and, in doing the things alleged in this Complaint, were acting
8 within the course and scope of such agency.
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15 other things, they do continuous and systematic business in California and in this
16 District and maintain one or more offices and employ personnel in California.
17 Defendants have also committed acts of copyright infringement in California and
18 have performed acts directed at and causing harm in California.
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20 and 1400(a) because Spotify is subject to personal jurisdiction in this District and
21 because a substantial part of the events or omissions by Spotify giving rise to the
22 claims occurred in this District.
CLASS ALLEGATIONS
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issued or applied for; and (b) that was reproduced and distributed
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This action has been brought and may be properly maintained as a class
5 action because there is a well-defined community of interest in the litigation and the
6 members of the proposed class are readily and easily ascertainable and identifiable.
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The member of the class are so numerous that joinder of all members is
8 impracticable. Plaintiff is informed and believes, and on that basis alleges, that
9 there are thousands of members in the class who can be readily located, identified
10 from various databases and records (including those maintained by Spotify, the
11 United States Copyright Office, and HFA) and through discovery, and notified of
12 this action.
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14 the members of the class, and Plaintiffs interests are consistent with and not
15 antagonistic to those of the other members of the class she seeks to represent.
16 Plaintiff and all members of the class have sustained damages and face irreparable
17 harm arising out of Defendants continued infringement as alleged herein and, thus,
18 are entitled to recover actual damages and/or statutory damages and obtain
19 injunctive relief to prevent further wrongful conduct by Defendants.
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Plaintiff has no interests that are adverse to, or which conflict with, the
21 interests of the absent members of the class and she is able to fairly and adequately
22 represent and protect the interests of such a class. Plaintiff believes strongly in the
23 protection of the copyrights of songwriters and music publishers. Plaintiff has
24 raised a viable claim for copyright infringement of the type reasonably expected to
25 be raised by members of the class, and will diligently and vigorously pursue that
26 claim. If necessary, Plaintiff may seek leave of the Court to amend this Complaint
27 to include additional class representatives to represent the class or additional claims
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Common questions of fact and law exist as to all members of the class
4 that plainly predominate over any questions affecting only individual members of
5 the class. These common legal and factual questions, which do not vary from class
6 member to class member, and which may be determined without reference to the
7 individual circumstances of any class member, include (without limitation) the
8 following:
(A)
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complained of herein;
(D)
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A class action is superior to other available methods for the fair and
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14 composition has the exclusive rights to reproduce and distribute the compositions in
15 phonorecords. 17 U.S.C. 106(1) and (3). This includes the exclusive rights to
16 make or authorize DPDs, interactive streams, and limited downloads of the musical
17 compositions through subscription or non-subscription online digital music services.
18 See 17 U.S.C. 115(d), 37 C.F.R. 385.10, 385.11.
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28 musical compositions as set forth above, Spotify must have first obtained not only a
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1 license for each individual phonorecord from its owner(s), but also a separate
2 license for the underlying musical composition that is embodied in each separate
3 phonorecord from the copyright owner of such composition. Spotify can either
4 license musical compositions directly or by obtaining a compulsory license in
5 accordance with the terms of 17 U.S.C. 115 by serving a timely NOI. Failure to
6 serve or file the requisite NOI within thirty days after making, and before
7 distributing any phonorecords of the workforecloses the possibility of a
8 compulsory license and, in the absence of a voluntary license, renders the making
9 and distribution of phonorecords actionable as acts of copyright infringement. 17
10 U.S.C. 115(b)(1) and (2).
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Spotify did not have and does not have a comprehensive system of
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Plaintiff is further informed and believes, and on that basis alleges, that
27 the musical compositions owned by the members of the class have been distributed
28 by Spotify through interactive streaming and temporary downloads and that Spotify
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1 has also made server copies thereof during the last three years, all without either a
2 direct or compulsory license.
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11 Plaintiffs copyrights and the copyrights of the members of the class, pursuant to 17
12 U.S.C. 504(c), Plaintiff and the class members are entitled to recover up to
13 $150,000 in statutory damages for each musical composition infringed.
14 Alternatively, at their election, pursuant to 17 U.S.C. 504(b), Plaintiff and the class
15 members are entitled to their actual damages, including Spotifys profits from
16 infringement, as will be proven at trial.
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Plaintiff and the class members are also entitled to recover attorneys
18 fees and costs pursuant to 17 U.S.C. 505, and prejudgment interest according to
19 law.
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21 cause, Plaintiff and the class members irreparable harm for which they have no
22 adequate remedy at law. Plaintiff and the class members are entitled to an
23 injunction under 17 U.S.C. 502 prohibiting the continued infringement of their
24 musical compositions.
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3 members of the class, prays for Judgment against Spotify and the Doe Defendants,
4 and each of them, as follows:
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For such fees and costs (including reasonable attorneys fees) incurred
F.
For such other and further relief as the Court deems just and proper.
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4 DATED: January 8, 2016
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