CIVIL COVER SHEET

JS 44C/SDNY
REV. 4/2014

The JS-44 civilcover sheet and the information contained herein neither replace nor supplement the filingand service of

pleadings orother papers as required by law, except as provided by local rules ofcourt. This form, approved by the
JudicialConference of the United States in September 1974, is required for use of the Clerkof Courtfor the purpose of
initiating the civil docket sheet.

M(M Mm?

PLAINTIFFS

FREEPLAY MUSIC, LLC

DEFENDANTS

AWESOMENESS LLC and BIG FRAME, INC

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER

ATTORNEYS (IF KNOWN)

BAKER & HOSTETLER LLP

45 ROCKEFELLER PLAZA

1119

, 15

NEW YORK, NY 10111

(212)589-4200

CAUSE OFACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DO NOTCITEJURISDICTIONAL STATUTES UNLESS DIVERSITY)

COPYRIGHT INFRINGEMENT; 17 U.S.C. 501

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NdSresQjudge Previously Assigned

If yes, was this case Vol. ninvol. Dismissed. No Yes

IS THIS AN INTERNATIONAL ARBITRATION CASE?

No 0

If yes, give date

Yes

ACTIONS UNDER STATUTES

TORTS

[]110
[1120
[]130
[]140

PERSONAL INJURY

[]160

INSURANCE
MARINE
MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF

[ ] 310 AIRPLANE
[ ] 315 AIRPLANE PRODUCT
LIABILITY

[ ] 320 ASSAULT,LIBEL&
SLANDER

[ ] 330 FEDERAL
EMPLOYERS'
LIABILITY

OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT

[J 151
[]152

MEDICARE ACT
RECOVERY OF
DEFAULTED

STUDENT LOANS

[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY

[ ] 350 MOTORVEHICLE
[ ] 355 MOTORVEHICLE

(EXCLVETERANS)
[]153

RECOVERY OF
OVERPAYMENT
OF VETERAN'S
STOCKHOLDERS

[]190

SUITS
OTHER
CONTRACT

[]195

[ ] 196 FRANCHISE

FORFEITURE/PENALTY

PHARMACEUTICAL PERSONAL [ ]625 DRUG RELATED

... ,T LIABILITY

INJURY/PRODUCT

[ ] 365 PERSONAL INJURY

PRODUCTLIABILITY

SE|ZURE 0F PROPERTY
91 I ISC* Rfi1

I ] 362 PERSONAL INJURYMED MALPRACTICE

[ ]240
[ ]245

375 FALSE CLAIMS

[ ] 423 WITHDRAWAL
28 USC 157

PROPERTY RIGHTS

LIABILITY

M 820 COPYRIGHTS
[ ] 830 PATENT
[ ] 840 TRADEMARK

PERSONAL PROPERTY

[ ] 370 OTHER FRAUD

[ ] 371 TRUTH IN LENDING

SOCIAL SECURITY

[
[
[
[
[

] 410 ANTITRUST
J 430 BANKS& BANKING
] 450 COMMERCE
] 460 DEPORTATION
] 470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT

(RICO)
[ ] 480 CONSUMER CREDIT
[]490 CABLE/SATELLITE TV

[ ] 850 SECURITIES/
COMMODITIES/

[ ] 380 OTHER PERSONAL

LABOR

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

[ ] 710 FAIR LABOR

PRODUCT LIABILITY

STANDARDS ACT

[ ] 720 LABOR/MGMT
[ ] 463 ALIENDETAINEE
[ ] 510 MOTIONSTO
ACTIONS UNDER STATUTES

VACATE SENTENCE
28 USC 2255

CIVIL RIGHTS

LAND

CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND

TORT PRODUCT
LIABILITY

[ ]290

u 400 STATE
REAPPORTIONMENT

28 USC 158

INJURY PRODUCT

[ ] 530 HABEAS CORPUS

[ ] 535 DEATH PENALTY
[ ] 540 MANDAMUS&OTHER

ALL OTHER

[ ] 441 VOTING
[ ] 442 EMPLOYMENT
[ ] 443 HOUSING/
ACCOMMODATIONS

[ ] 445 AMERICANS WITH

DISABILITIES EMPLOYMENT

] 861
] 862
] 863
] 864
J 865

HIA (1395ff)
BLACKLUNG (923)
DIWC/DIWW (405(g))
SSID TITLE XVI
RSI (405(g))

EXCHANGE

[ ] 890 OTHER STATUTORY

ACTIONS

[ ] 891 AGRICULTURAL ACTS

[ ) 740 RAILWAY LABOR ACT

[ ] 751 FAMILY MEDICAL
LEAVE ACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION

[ ] 791 EMPL RET INC

SECURITY ACT
IMMIGRATION

PRISONER CIVIL RIGHTS

[ ] 462 NATURALIZATION
[ ] 550 CIVILRIGHTS
[ ] 555 PRISON CONDITION
[ ] 560 CIVILDETAINEE

[
[
[
[
[

RELATIONS

PRISONER PETITIONS

[ ] 440 OTHER CIVILRIGHTS

(Non-Prisoner)

[ ]220
[ ]230

OTHER STATUTES

[ ]368 ASBESTOS PERSONAL ' >69 ER

REAL PROPERTY

[J 210

BANKRUPTCY

[ ] 422 APPEAL

t1RQnnTHFR

PRODUCT LIABILITY
INJURY

CONTRACT
PRODUCT
LIABILITY

PERSONAL INJURY

[ ] 367 HEALTHCARE/

[ ] 360 OTHER PERSONAL

BENEFITS

[ ] 160

. j Of)-|

NATURE OF SUIT

(PLACEAN[x] INONEBOXONLY)

CONTRACT

SCaseNa

APPLICATION

[ ] 465 OTHER IMMIGRATION

FEDERAL TAX SUITS

[ ] 870 TAXES (U.S. Plaintiff or

Defendant)
[ ] 871 IRS-THIRD PARTY

[ ] 893 ENVIRONMENTAL
MATTERS

[ ] 895 FREEDOMOF
INFORMATION ACT

26 USC 7609

[ ) 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITY OF
STATE STATUTES

ACTIONS

CONDITIONS OF CONFINEMENT

[ ] 446 AMERICANSWITH
DISABILITIES -OTHER

[ ] 448 EDUCATION

REAL PROPERTY

Checkif demanded in complaint:

CHECK IF THIS IS A CLASS ACTION

DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?

UNDER F.R.C.P. 23

DEMAND $_

OTHER

JUDGE

DOCKET NUMBER

Check YES only ifdemanded in complaint

JURY DEMAND: SyES QlO

NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).

(PLACEANxINONEBOXONLY)

H 1 Original

ORIGIN

LJ2 Removed from

Proceeding

<' 3 Remanded LJ 4 Reinstated or

StateCourt

from

|1 ~

LJ 5 Transferred from Q 6 Multidistrict

Reopened

(Specify District)

7 Appeal to District

Litigation

Judge from

ADDellate

|_| a. all parties represented

Magistrate Judge

^^

Judgment

| | b. At least one
party is pro se.

(PLACEANxINONEBOXONLY)

[x] 1 U.S. PLAINTIFF

BASIS OF JURISDICTION

2 U.S. DEFENDANT Q 3 FEDERAL QUESTION

IFDIVERSITY, INDICATE

D4 DIVERSITY

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)
CITIZEN OF THIS STATE

PTF

DEF

[ ]1

[ ]1

PTFDEF

CITIZENOR SUBJECT OF A

[ )3 [ ]3

FOREIGN COUNTRY

CITIZEN OF ANOTHER STATE []2

[]2

INCORPORATED and PRINCIPALPLACE

PTF

DEF

[ ]5

[ ]5

[]6

[]6

OF BUSINESS IN ANOTHER STATE

INCORPORATED or PRINCIPALPLACE

[]4[J4

FOREIGN NATION

OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

FREEPLAY MUSIC, LLC

1650 BROADWAY, STE. 1108
NEW YORK, NEW YORK 10019

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

AWESOMENESS LLC

11821 Mississippi Ave., Los Angeles, California 90025

BIG FRAME, INC

8965 Lindblade Street, Culver City, California 90232

DEFENDANT(S) ADDRESS UNKNOWN
REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RESIbiNCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one:

THIS ACTION SHOULD BE ASSIGNED TO:

WHITE PLAINS

[x] MANHATTAN

(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)

DATE 2/17/2015 SIGN<fm^rjg|jeRNEY OF RECORD

ADMITTED TO PRACTICE IN THIS DISTRICT

C^f^^^^^~^'^

MYES (DATE ADMITTED Mo._5

RECEIPT #

Attorney Bar Code # OW-9469

Magistrate Judge is to be designated by the Clerk of the Court.

Magistrate Judge
Ruby J. Krajick, Clerk of Court by

v:\>' .
*"v"'""'

Deputy Clerk, DATED

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

.,,,

.- \\y,\
is so Designated.
.

Yr.1998 )

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

FREEPLAY MUSIC, LLC,

Plaintiff,

Civil Action No.

JUiilJiUJAit!

15 CV 1119
COMPLAINT AND
JURY DEMAND

AWESOMENESS LLC and BIG FRAME, INC.,

Defendants.

Zi

-I-,

Plaintiff Freeplay Music, LLC ("FPM"), through its undersigned attorneys, Baker :T

't

Hostetler, LLP, complains of defendants Awesomeness LLC ("Awesomeness") and Big Frame,
Inc. ("Big Frame," and with Awesomeness, the "Defendants"):
Nature of the Action

1.

YouTube has become the premier source for digital entertainment. Every minute, 3

million videos are viewed on, and 300 hours of new content is uploaded to, YouTube.

Sometimes referred to as the TV of the internet, its millions of videos garner billions in revenue.
With the growth of YouTube's audience, a new breed of companiesdubbed multichannel
networks (MCNs)arose to capitalize on YouTube's vast revenue stream. In their effort to

become the TV networks of YouTube, the MCNs create and acquire video content, which they
monetize. Like traditional TV networks, MCNs are responsible for securing rights to content

and ensuring they do not infringe the intellectual property rights ofothers. But inmany cases,
like this one, that responsibility has been eschewed to the detriment of copyright owners, like
FPM. The MCNs have misappropriated FPM's copyrights and profited from that
misappropriation, in clear violation of copyright law.

2.

With a library boasting tens of thousands of musical worksgenerating more than 1.8

million licenses in the last 20 months aloneFPM has, since its inception in 2001, always
embraced technology and successfully remained at the leading edge of the paradigm shifts in the

music industry. To help monitor unknown uses of songs in its catalogue, FPM teamed up with a
related but independent company called TuneSat, which has the premier audio recognition
technology.
3.

While seeking to uncover unknown uses of its clients' music, TuneSat discovered various

MCNs exploiting FPM's copyrighted music. None of these uses were authorized. Although
there appears to be unauthorized uses of other copyright holders' music, the size and success of
FPM's catalogue, coupled with its alliance with TuneSat, is the reason FPM was first to

recognize and address what appears to be a systemic problem.

4.

With TuneSat's technology and evidence of clear copyright infringement, FPM

approached various MCNs to alert them to this issue. Rather than simply suing, as it could have,
FPM continued to explore solutions to this problem. But despite their recognition that FPM's

copyrights were being infringed, the MCNs ceased serious negotiations. Last week, two brought
declaratory judgment actions, and other MCNsincluding Defendantshave refused to address
their infringement and/or properly compensate FPM.

5.

Defendants exploited at least fourteen of FPM's copyrighted musical works. That

exploitation comes at the expense of FPM, who never authorized Defendants' use. Given the
industry's apparent decision to ignore this infringement, FPM is now left with no alternative but

to bring this action, and others like it, to protect its rights and the rights of hundreds of
composers it represents.

605907805.1

Parties

6.

FPM is a Delaware limited liability company, with a principle place of business in New

York, New York.

7.

Upon information and belief, Awesomeness is a Californialimited liability company,

with a principal place of business at 11821 Mississippi Ave., Los Angeles, California90025.
8.

Upon information and belief, Big Frame is a Delaware corporation, with a principal place

of business at 8965 Lindblade Street, Culver City, California 90232.

9.

Upon information and belief, Awesomeness purchased Big Frame within the last year.
Jurisdiction and Venue

10.

FPM's claims arise under the Copyright Act, 17 U.S.C. 101 et seq. Subject matter

jurisdiction over this action is conferred upon this Court by 28 U.S.C. 1331 and 1338.
11.

Venue in this District is proper under 28 U.S.C. 1391.

12.

The Court has personal jurisdiction over the Defendants because they conduct systematic

and continuous business over the internet, knowingly and repeatedly transmitting video files over

the internet to New York residents, and have performed acts, causing harm to FPM, including
infringingcopyrights belonging to FPM, a New York copyright holder, which give rise to this
action.

Creation of FPM and Its Business

13.

FPM's founder and CEO, Scott P. Schreer, is one of America's most prolific and

performed TV composers and producers. As the driving creative force behindmany of today's
top music branding and music packages for sports broadcasts, Schreer's credits include the NFL

605907805.1

on Fox theme, the MLB on Fox theme, the opening theme and underscore for ABC'sHope and

Faith, and The Cosby Show, among many others. One of New York's top studio musicians and

producers, Schreer has earned several Emmy nominations, seven BMI Writer ofthe Year awards
(2007-2013), and has written thousands of music compositions over the course of his career.
Schreer was recently voted one of America's Top 40 Music and Sports people of 2014 by ESPN
Magazine.
FPM

14.

In 2001, Schreer launchedFPM, a high quality online music library. The music industry

was changing and facing new challenges, so FPM sought to create an environment in which both
emerging and established composers and artists had the opportunity to expose their music to
television and film licensing while maintaining the ability to exploit that music in other
mediums. Schreer, himself, is a contributing composer to a portion of FPM's catalogue.

15.

At inception, FPM's business model was focused primarily on licensing music for

television and feature films. The use of a musical work in any audio-visual formsuch as part

of a motion picture, television program, commercial, music video or other video, including a
video streamed over the Internetrequires authorization from the owner of the copyrights to the

musical composition and the sound recording. This authorization is referredto as a

"synchronization license."

16.

Music used in television and film generates revenue through: (i) public performances;

and (ii) upfront fees for synchronization licenses (for synchronizing music to video). Music and
videos are "performed" when they are broadcast or otherwise transmitted to the public, such as
on television, cable, satellite, internet, radio, etc. Performance Rights Organizations ("PROs"),

605907805.1

such as BMI and ASCAP, collect the fees for public performances and pay royalties to the rights
holders for broadcasts and other transmissions of this music.

17.

Focusing on the public performance income stream, FPM granted free synchronization

licenses to qualified network broadcasters. FPM's business model was visionary, in that it
eliminated synchronization fees, a barrier to entry. This new business model provided FPM's
music a competitive edge in the marketplace: producers were incentivized to use FPM's music as

their initial budget was reduced. But by increasing its market share, FPM would generate
additional performance fees, especially when a television program was successful.

18.

Offering a free synchronization license for non-commercial uses was a key component of

FPM's model. The more its music was used, the more appeal it would have for a wider

audience. Because its catalogue was meant to be used in audiovisual works, FPM was only
concerned with profiting from business and/or commercial uses of its music.

19.

To help develop its business model and increase exposure to its music, from about 2001

to 2005, FPM entered into a non-exclusive license with Apple. Under that arrangement, Apple
customers worldwide could freely download certain of FPM's copyrighted music for their

personal use. FPM's copyright music was also made available through Apple's DVD Studio Pro
and Final Cut Pro video editing software, which allowed customers to add a soundtrack to their

personal videos. FPM offered Apple customers free synchronization licenses for "personal, non
commercial uses"; if a customer's intended use of FPM's music was commercial and/or for-

profit, the customer was required to obtain a separate synchronization license from FPM.

20.

FPM's business has grown significantly since 2001. FPM now acts as a music publisher

for hundreds of composers and almost 50,000 musical works, 15,000 of which are currently
available on its website. This, however, is only a tiny fraction of the submissions FPM receives.
5
605907805.1

Because FPM will only represent commercially viable music, it rejects approximately 90%-95%
of all submissions.

FPM's Website

21.

Since 2001, FPM also has made its catalogue available on its website. Customers always

could download music from the FPM website. And consistent with its business model, FPM

issued free synchronization licenses for certain uses, including: (i) national television
broadcasts; (ii) feature-length films in U.S. theaters; (iii) in-class education; and (iv) personal
use. The first two types of uses were, again, to lower the barrier to entry for film and television.
The third and fourth were for exposure.

22.

There was never any ambiguity about what constituted a "personal use." The terms of

use published on FPM's website (the "Prior Terms of Use") made clear that personal use
included only "non-commercial purposes," such as "personal listening pleasure" and "family
slide show[s]." Excluded from personal use was any exploitation of FPM's music "posted on a
website."

23.

Under FPM's Prior Terms of Use, all other uses, including on both personal and revenue

generating websites, required a license. For videos, a synchronization license was required. To
request a license, a customer was required to complete a form, which included the customer's
explanation of the intended use of FPM's music.
24.

Under FPM's Prior Terms of Use, a customer could not exploit FPM's copyrighted music

on YouTube without a synchronization license.

25.

The personal video market evolved and more users turned to YouTube for displaying,

listening, and viewing content. Likewise, more users were using YouTube as the sole medium

6
605907805.1

for personal videos. Recognizing this trend, in 2013, FPM expanded the scope ofthe free
synchronization licenses itoffered. FPM's synchronization licenses began allowing customers to
exploit certain music in personal videos on YouTube.

26.

InAugust 2013, FPM rolled out its new website, and began offering approximately 2,000

titles free for non-commercial use on YouTube.

27.

When a user logs onto FPM's website, http://www.freeplaymusic.com/, the user is

presented with a variety ofchoices and thousands ofmusical works (i.e., sound recordings and
the underlying musical compositions), all ofwhich are available for certain types ofexploitation.
Once the user chooses the desired musical work and selects "Add to Cart," the user is prompted
to choose a license type:

License Type

License Fee

Terms of Use

06:16
YouTube

Business Use- Youtube {unlimited URLs)(1 Year(s), $250.00)

Personal use on YouTube only(99 Year(s), S0.00)
Business

Multimedia Unlimited (non-broadcast) [worldwide]*,1 Year(s), S250.00)

Music on Hold [singie tracKHI Year(s). $25.00)
Web Page Use(1 Year(s), S100.00)
Multimedia one use (non-broadcast) [worldwideJ<1 Day(s), $50.00)
Game/App Use(1 Year(s), $150.00)

Add more Tracks

Freceeo io clUrcUoui

Education

In-Classroom Use(99 Year(s), 50.00)

Rim

Commercial Film Festival [track]{7 Day(s), S50.00)

Commercial Unlimited Film Festivals [per track](1 Year(s), 3150.00)
Student Film Festival (non commercial}(1 Year(s), $0.99)
Professional Use (per track)<1 Year(s). S500.00)

Indie trailer (theatrical and web) [US Oniy](1 Year(s), S250.00)

Internet

Personal use (Social Media's- non oromotionalf99 YearfsV $0.99)

28.

The user cannot "Proceed to Checkout" without choosing a license type. A

synchronization license to play thetrack in a YouTube video has two options: (i) "Business
Use," which costs $250 for a one-year license, and (ii) "Personal Use," which is free.

605907805.1

29.

Under the terms of the synchronization license for "Personal Use," which is free, FPM

has the right to make a claim and receive revenue from YouTube for exploitation of those
videos. This is made clear when the user chooses "Personal Use," with the following terms:

Please read our TERMS OF USE carefully about the restrictions of

this license. Freeplay reserves the right to "claim" this music with
Google and monetize its use on your video. If you would like the
ability to monetize your videos or don't want us to monetize your
video you need to purchase a license. If you are a Multi-Channel
Network managed channel, such uses are considered Business
YouTube Uses and a license must be purchased. Please contact
our licensing department for a quote: contact@freeplaymusic.com
or (212) 974 0548.

30.

Once the user chooses a license and decides to "Proceed to Checkout," a window pops up

displaying the "FPM License," requiring the user to enter an email address confirming that he or
she has read the terms of the license. A copy of the license is then e-mailed to the confirmation

address entered by the user. The FPM personal synchronization license grants the user the right
to use the musical work for the "sole, limited and restricted purpose" of "Personal use on
YouTube only."

31.

Since August 2013, FPM has issued over 1.8 million licenses to the copyrighted music in

its library.
TuneSat

32.

After over a decade of research and development, in 2009, Schreer and Chris Woods

launched TuneSat, a global online audio fingerprint technology and recognition service. TuneSat

was established to help monitor broadcasts and other transmissions (i.e. public performances) of
music. TuneSat enables music copyright holders to digitally detect where their work is being

exploited by searching across various platforms for matches. Tunesat tracks 320 television

8
605907805.1

networks in 14countries, including the United States, United Kingdom, Germany, France, Spain
and Italy, and has over 50 million fingerprinted songs in its database.

33.

TuneSat provided the perfect solution to copyright owners, like FPM, whose main source

of income was based on payment for broadcasts and other transmissions of the films and
television shows.

34.

In 2012, TuneSat launched a product to detect unknown streaming of music across the

Internet. TuneSat's web monitoring product searches publicly available domains, identifying
music used in streaming audio, video, podcasts, and other multimediafiles, including content on
YouTube.

35.

Although TuneSat has many other clients, TuneSat's technology was the perfect analog

to FPMit could detect the public performance of FPM's copyrighted music across the Internet.

TuneSat detected the rampant use of FPM's copyrighted music by the MCNs, including the uses
by the Defendants here.
Defendants and the MCN Business

36.

Most content on YouTube is uploaded by individuals, but media corporations and other

organizations, including MCNs, use YouTube as a platform to distribute content.

37.

Defendants are MCNs.

38.

MCNs are independent companies that are built on top of the YouTube platform, using

YouTube's video capabilities and monetization platform. Although there are many MCN
channels on YouTube, consumers cannot necessarily detect whether they are watching a video
on YouTube's network or on an MCN's.

605907805.1

}
I

39.

MCNs create and stream their own content. They also scour YouTube, inviting channels

that gain popularity to join their networks. MCNs offer programming, funding, digital rights
management, monetization/sales, and audience development services. In return, the MCNs keep
a percentage of the advertising revenue from the channel and drive-up their viewership through
the channels popularity, further increasing their advertising revenue. MCNs will also offer to
exploitthis content in other places, including on their own websites.

40.

MCNs are a multi-billion dollar business. In 2013, Awesomeness was acquired for

approximately $117 million. By December 2014, Awesomeness was valued at $325 million.

41.

But MCNs' lucrative business model also has created significant concerns, including

increasing opportunities for copyright infringement. Upon information and belief, in response to
those concerns, in 2014, YouTube issued a policy requiring MCNs to designate each channel
within its network as an "affiliate" or "managed" partner.

42.

Channels designated as affiliates take full responsibility for their content, whichis

reviewed and approved by YouTube. Those channels are not at issue here.

43.

Forchannels designated as managed partners, the MCN is responsible for copyright

compliance and instituting safeguards to protect against copyright violations. In exchange for
their agreement to self-police, MCNs are permitted to monetize videos instantly and to the
exclusion of third parties.

44.

Because YouTube does not review MCN managed channels' content, copyright owners

are not advised by YouTube of the use of their content. This means that when a managed

channel uploads a video that includes FPM's copyrighted music, FPM is not notified by

10
605907805.1

YouTube. Content owners, like FPM, only learn of the use of their content if the MCN advises
them or through happenstance.

Utilizing TuneSat's Technology, FPMLearns ofMCNs' Unauthorized Use

45.

With over 200,000,000 impressions to its website as of 2013, FPM is one of the most

widely trafficked production music libraries in the industry.

46.

Butbefore TuneSat, FPM suffered from the same problem as other artists, publishers, and

copyright ownersthe inability to track the unlicensed uses of its copyrights.

47.

By hiring TuneSat, FPM uncovered and exposed the systemic unauthorized use of its

copyrighted music by MCN managed channels, such as Defendants' managed channels.

48.

For over a year, FPM and its administrator have been notifying MCNs that FPM's

copyrights have been infringed and exploited without authorization. FPM and Tunesat

approached the MCNsincludingDefendantsoffering a variety of solutions. None were

deemed acceptable.

49.

To date, most MCNs, including Defendants, have refused to remedy this wrongdoing.

50.

FPM negotiated with many MCNs, including Defendants. Last summer, FPM and

TuneSat showed Awesomeness how it could utilize TuneSat's technology to monitor andprotect
against potential infringement. Butjust as they refused to take a proper synchronization license

from FPM before uploading the videos, or otherwise police against this infringement,
Defendants, like other MCNs have decided to ignore this infringement.

11
605907805.1

The FPM Copyrights at Issue and Defendants' Unauthorized Exploitation

FPM's Copyrights

51.

FPM is the owner of the registered copyrights (the "FPM Copyrights") in and to the

musical compositions and sound recordings (the "FPM Copyrighted Music") set forth below:
a.

"City Light," covered by Registration No. SR 337-201 covering the collection

Acid Jazz Volume 1.

b.

"Walkin the Dog," covered by Registration No. SR 337-201 covering the

collection Acid Jazz Volume 1.

c.

"Fight the Monsters," covered by Registration No. SR 633-491 covering the

collection Freeplay Music CD #13.

d.

"Maximus Rules,'" covered by Registration No. SR 382-040 covering the

collection Freeplay Music Corp. DVD#1.

e.

"Sexy Beat," covered by Registration No. SR 382-040 covering the collection

Freeplay Music Corp. DVD #1.

"A Walk in the Sun," covered by Registration No. SR 382-040 covering the
collection Freeplay Music Corp. DVD #1.

g.

"Funky Summer," coveredby Registration No. SR 335-614 covering the

collection Hip Hop Volume 2.

h.

"Sit Tight," covered by Registration No. SR 374-911 coveringthe collection

Freeplay Music Corp. DVD #4.

i.

"My Wild Child," covered by Registration No. SR 337-216 covering the

collection Hip Hop Volume 1.

j.

"Attitude Booty," covered by Registration No. SR 374-911 covering the

collection Freeplay Music Corp. DVD #4.

k.

"Piano Stripped," covered by Registration No. SR 396-282 covering the

collection Freeplay Music Corp. DVD #9.

1.

"Etude Blanc," covered by Registration No. SR 337-059 covering the collection

Solo Instruments Volume 1.

m.

"Mach 77," coveredby Registration No. SR 337-221 coveringthe collection

Sports Highlights Volume 3.

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n.

"Raggae Christmas" covered by Registration No. SR 633-487 covering the

collection Freeplay Music CD #14.

Defendants' Unlicensed Use ofthe Music Copyrights

52.

From October9, 2010, Defendants have engaged in at least 22 uses of the FPM

Copyrights, including:

a.

FPM's copyrighted musical work "City Lights" is exploited on the following

websites: http://www.youtube.com/watch?v=AUh8KDTTsR8;
http://www.youtube.com/watch?v=b8oO0RsxvuE; and
http://www.youtube.com/watch?v=8fiC4h2fGLk;

b.

FPM's copyrighted musical work "Walkin the Dog" is exploited onthe following
website: http://www.youtube.com/watch?v=uIKN_liTKBA;

c.

d.

FPM's copyrighted musical work "Fight the Monsters" is exploited on the

following website: http://www.youtube.com/watch?v=OXYcjzZeEHA;

FPM's copyrighted musical work "Maximus Rules" is exploited on the following

websites: http://www.youtube.com/watch?v=GAxS_Lh4rjE; and
http://www.youtube.com/watch?v=N_qpqHxtENw;

e.

FPM's copyrighted musical work "Sexy Beat" is exploited on the following

website: http://www.youtube.com/watch?v=DG7FWO-STTE;

FPM's copyrighted musical work "A Walk in the Sun" is exploited on the
following website: http://www.youtube.com/watch?v=q60hYGnnp28;

g.

FPM's copyrighted musical work "Funky Summer" is exploited on the following

websites: http://www.youtube.com/watch?v=BFX9UQw-buo; and
http://www.youtube.com/watch?v=wb_nNc02Jv4;

h.

FPM's copyrighted musical work "Sit Tight," is exploited on the following

websites: http://www.youtube.com/watch?v=jcNpTKZPXeU; and
http://www.youtube.com/watch?v=fo9pWpsglVc;

i.

FPM's copyrighted musical work "My Wild Child" is exploited on the following
websites: http://www.youtube.com/watch?v=4_GgY0Vj8hY;
http://www.youtube.com/watch?v=N_qpqHxtENw; and
http://www.youtube.com/watch?v=2aTlotg0IT0;

j.

FPM's copyrighted musical work "Attitude Booty" is exploited onthe following

website: http://www.youtube.com/watch?v=knxHVCtmAYM;

k.

FPM's copyrighted musical work "Piano Stripped" is exploited onthe following

website: http://www.youtube.com/watch?v=b8oO0RsxvuE;
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1.

FPM's copyrighted musical work "Etude Blanc" is exploited on the following

websites: http://www.youtube.com/watch?v=mnCHUq99ork; and
http://www.youtube.com/watch?v=Jq8IOD301dI;

o.

FPM's copyrighted musical work "Mach 77" is exploitedon the following

website: http://www.youtube.com/watch?v=OXYcjzZeEHA; and

m.

FPM's copyrighted musical work "Raggae Christmas" is exploited on the

following website: http://www.youtube.com/watch?v=MlnMqsn4H8g.

53.

Upon information and belief, Awesomeness itself downloaded "Etude Blanc."

54.

Upon information and belief, Defendants monetized the uses of FPM's Copyrighted

Music by, among other things, placing advertisements in those videos and/or using the
viewership of those videos to increase the amount of their advertising revenues.
Count I:

Copyright Infringement

55.

FPM incorporates the allegations set forth in paragraphs 1 through 54 hereof, inclusive,

as though the same were set forth herein.

56.

This cause of action arises under 17 U.S.C. 501.

57.

Each of the FPM Copyrights has been registered with the United States Copyright Office.

58.

FPM owns all exclusive rights under 17 U.S.C. 106 to the FPM Copyrighted Music.

59.

Each of the musical works covered by the FPM Copyrights is an original work and

constitutes copyrightable subject matter within the meaning of 17 U.S.C. 102.

60.

FPM has never granted Defendants or otherwise authorized Defendants to exploit the

musical works covered by the FPM Copyrights.

61.

Defendants' acts violate FPM's exclusive rights under 17 U.S.C. 106.

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62.

Defendants' infringement of the FPM Copyrights is andhas been willful, intentional,

purposeful, and/or in disregard of FPM's rights.

63.

FPM is entitled to its damages and Defendants' profits from the alleged infringement, in

an amount to be proven at trial.

64.

In the alternative, FPM is entitled to statutory damages, in an amount of up to $150,000

per infringed copyright.

PRAYER FOR RELIEF

WHEREFORE, FPM respectfully prays for judgment against

Defendants as follows:

(a)

for a ruling that Defendants have willfully infringed FPM's

copyrights;

(b)

for injunctive relief prohibiting Defendants from exploiting the FPM's

copyrighted music;

(c)

for FPM's damages and, to the extent not duplicative, Defendants'

profits attributable to the infringement;

(d)

in the alternative to actual damages, for statutory damages under 17

U.S.C. 504(c), in an amount of up to $150,000 per work;

(e)

for FPM's costs of this action, including reasonable attorneys' fees under 17
U.S.C. 505;

(f)

for prejudgment and post judgment interest; and

(g)

for such other and further relief as the Court deems proper and just.

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DEMAND FOR JURY TRIAL

FPM requests a trial by jury on all issues so triable.

Respectfully submitted,
BAKER HOSTETLER, LLP

Dated:

February 17, 2014

New York, New York
Oren J. Warshavsky

Email: owarshavsky@bakerlaw.com
Tatiana Markel

Email: tmarkel@bakerlaw.com
45 Rockefeller Plaza

New York, New York 10111

Telephone: (212) 589-4624

Facsimile: (212) 589-4201
Attorneysfor Plaintiff

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