FILED

Superior Court Of California

County Of Los Angete*

OCT 23 2015

TRE LOVELL, State Bar No. 162806

THE LOVELL FIRM, A Professional Law Corporation
1875 Century Park East, Suite 1490
Century City, CA 90067
Tel: (310) 275-2100
Fax:(310)275-2895
E-mail: tre@lovellfirm.com

Attorneys for Plaintiff

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Shcrri K-^ancr, executive Qllicer/Clcrfc

Kent Harris
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SUPERIOR COURT OF THE STATE-QF CALIFORNIA^)

FOR THE COUNTY OF LOS ANGELES

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CASE NO.

KENT HARRIS, an individual,

COMPLAINT FOR:

Plaintiff

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vs.

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(1)
(2)
(3)
(4)
(5)

FRAUDULENT CONCEALMENT

(6)
(7)
(8)
(9)

BREACH OF FIDUCIARY DUTY

NEGLIGENCE
OPEN BOOK ACCOUNT
ACCOUNT STATED

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WARNER/CHAPPELL MUSIC, INC., a

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BC598768

Delaware corporation, dba Unichappel Music,

Inc., and DOES 1 through 50, inclusive,

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DECEIT (CC 1709-1710)

NEGLIGENT MISREPRESENTATION
BREACH OF WRITTEN CONTRACT
BREACH OF THE IMPLIED

COVENANT OF GOOD FAITH AND

FAIR DEALING;

(10) RESCISSION

Defendants.
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DEMAND FOR JURY TRIAL

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COMES NOW, Plaintiff KENT HARRIS, alleges as follows:

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has resided and conducted all relevant business activities within the State ofCalifornia, OfidSt^DfLos j
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Defendant WARNER/CHAPPELL MUSIC, INC. ("Defendant" or '^^^^1]*")

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PlaintiffKENTHARRIS ("Plaintiff') is an individual who atalS^^iSitioSeAhereJri^

Angeles.
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Complaint

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isaDelaware corporation that, atall relevant times herein, has conducted business activities within the

State of California, County of Los Angeles. Warner is a global music publishing company with its

headquarters located in Los Angeles, California. Based on information and belief, Warner either

acquired or alsooperates under the name Unichappell Music, Inc.

defendants, not previously identified by name but designated as Does 1through 50, may be liable or

responsible in whole or in part for the allegations contained herein. Once the true names and capacities

ofthese defendants areascertained, Plaintiffwillseekleave toamend thisComplaint andsubstitute said

true names and capacities.

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named herein as Does 1through 50, inclusive, is/are intentionally or negligently responsible in some

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manner, as is legally responsible, either vicariously or by virtue of his, her or it's agents, servants,

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employees, predecessors-in-interest or successors-in-interest, for the acts and occurrences herein

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referred to, and has proximately caused injury or damages thereby to Plaintiff as a result of their

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conduct hereinafter described.

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Plaintiff is informed and believes and on that basis alleges that, at all relevant times,

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each defendant, whether named or fictitious, was theagent, partner, joint venture partner, conspirator

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oremployee ofeach ofthe other defendants, and in doing the things alleged to have been done inthe

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complaint, acted within the scope ofsuch relationship or ratified the acts ofthe others, and isjointly

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and severally liable assuch. Plaintiff further believes and alleges that defendants, and each of them,

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are the alter egos of the other, and that there is such a unity of interest and ownership between and

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among defendants, that such interests have become intertwined and non-separable. Further, each

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defendant has separately disregarded corporate and separate existence formalities and have, jointly and

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severally, used separate funds of business entities of and by each of them for their own personal

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purposes.

NATURE OF THE CASE.

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Plaintiffis informed and believes and thereon alleges that each of the defendants

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At all times mentionedherein,Plaintiffbelievesand thereonallegesthat otherfictitious

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3.

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6.

Plaintiffhas beena songwriter for oversixty(60) years. In the 1950's, Plaintiff

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1/1

Complaint

wrote a musical composition titled "Cops and Robbers," which was covered by Bo Diddley, the

Rolling Stones, GeorgeThorogood, The Beatles, and others. Plaintiffwas the sole composer and

copyright owner for this composition. In 1956, Plaintiff entered into a written contract with

American Music, Inc. ("American") granting American exclusive music publishing rights to

administer the song. (A copyof the agreement is attached heretoas Exhibit A.) Defendant Warner

ultimately acquired American Music, Inc., and by virtue of the acquisition, assumed all rights and

obligationsowed towards Plaintiff under the agreement.

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Defendant Warner's dutiesand obligations as a music publisher is to exploit,

monitor, collect revenues andenforce ownership rights of Plaintiffs composition. Specifically,

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suchduties include, but are not limited to: (a) promoting and marketing Plaintiffs composition for

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licensing and usage by recording artists, record labels, broadcasters, film and television producers,

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radio stations, internetdownloading and streaming sites, and other music personnel/entities; (b)

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monitoring andtracking when the composition is used andcollecting royalty payments; (c) pursuing

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legalenforcement when the composition has been infringed upon and/or used withoutauthorization

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or payment; (d) tendering royalty payments to Plaintiff; (e) registering the composition with the

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various performance rights organizations (ASCAP, BMI, SESAC); (f)registering the composition

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withHarry Foxand otheradministrative organizations for exploitation of mechanical rights, and

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other duties.

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8.

As partof the contractual arrangements with Defendant Warner, Plaintiffassigned

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his ownership in said composition to Defendant, thus becoming fully andcompletely dependent on

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Defendant to exploit andenforce all rights associated widithecomposition as its copyright owner.

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9.

On or aboutMarch, 2015, Plaintiffdiscovered that the composition had beencovered

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by other artists and released on various albums as far back as 1960 and as recent as 2012. Such

artists and albums include George Thorogood's Haircut, Downliner's Sect's The Sect, The Rolling

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Stones' Rolling Stones BBC Sessions, Wayne Fontana and the Mindbender's The Game ofLove, Bo

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Diddley's Have Guitar Will Travel, among others. At the same time, Plaintiff discovered that the

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organization that secures mechanical rights for the various songs anddistributes royalties to music

Complaint

publishers. Since neither Defendant nor the Harry Fox Agency had issued licenses for the

mechanical rights, the song has been improperly and unlawfully exploited for the past 60 years

without proper licensing, monitoring, tracking, collection of revenues or enforcement.

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In addition, third parties are believed to have claimed ownership to Plaintiffs

composition and thereby collecting royalty payments and other compensation, as well as exploiting

it for their own means and purposes. Despite the fact Defendant is aware of such efforts by third

parties, Defendant has refused to pursue legal recourse and/or otherwise enforce ownership rights

pertaining to the subject song, as it is contractually and legally obligated to do. One such artist is

Bo Diddley, otherwise known as Ellas Mcdaniel. For example, a search of BMI's database (one of

10 the primary performance rights organizations administering performance rights/royalties for musical
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compositions) reveals publishing rights of the song being attributed to Ellas McDaniel.

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Upon learning of the unprotected status of the song, Plaintiff reached out to

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Defendant for an explanation and understanding as to what has occurred, as well as Defendant's

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attempts to resolve, rectify and/or enforce the rights of the song. In addition, Plaintiff requested

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copies of all paperwork and accounting pertaining to the song's administration. Defendant has

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refused to provide meaningful answers to any of Plaintiffs inquiries, nor provide copies of such

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paperwork or accounting to Plaintiff.

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12.

Based on information and belief, Defendant Warner discovered that it had failed to

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secure mechanical licenses, monitor and identify usage of the song, collect royalties, enforce the

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copyright and otherwise properly administrate this song, then chose to conceal such actions from

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Plaintiff. It was only from Plaintiffs own efforts to investigate the song's activity, reach out to the

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different record labels and agencies, and conduct other research, that it learned of the current

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situation with the song.

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FIRST CAUSE OF ACTION

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(Fraudulent Concealment)

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(Against All Defendants and Does 1-50)

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13.

Plaintiffhereby incorporates and re-alleges paragraphs 1-12 as though

fully set forth herein.

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Complaint

Plaintiffs song with respect to the fact it: (a) failed to properly registerthe composition with the

Harry Fox Agency to ensure mechanical licenses would be available and issued to third parties

seeking to cover the song and generaterevenue; (b) had become aware of third parties who were

collecting payments and claiming ownership to the song, yet failed to disclose such facts to

Plaintiff; (c) upon inquiry by Plaintiffs, misrepresented the status and their mishandlingof the

composition by claiming they were "investigating" the problem when, in fact, it was aware of

specific facts set forth above.

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Defendant was under a duty to disclose the true facts set forth herein since it had

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knowledge of their existence and knew that Plaintiff was unaware and did not have access to the

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true facts.

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Defendant intentionally concealed and/or suppressed these true facts with the intent

to defraud Plaintiff, and/or acted in conscious disregard of the ascertainment of same.

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17.

Plaintiff was not aware of these facts.

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18.

As a direct and proximate cause of Defendant's actions, Plaintiff has suffered and

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continues to suffer actual damages in an amount in excess of the jurisdictional limit to be

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determined in accordance with proof at the time of trial.

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19.

Moreover, Defendant's conduct was willful, malicious, oppressive and/or

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fraudulent. As a result of such conduct, Plaintiffseeks punitive and/or exemplary damages against

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Defendant.

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SECOND CAUSE OF ACTION

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(Deceit ~ California Civil Code Sections 1709-1710)

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(Against All Defendants and Does 1-19)

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Defendantconcealedand suppressedmaterial facts about its mishandling of

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20.

Plaintiff hereby incorporates and re-alleges paragraphs 1-19as though fully set

forth herein
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At all times material to this complaint, Defendantengaged in the acts set forth

herein in an effort to willfully deceive Plaintiff for the purposes of inducing Plaintiff to alter his

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Complaint

positions to his detriment. Specifically, Defendant misrepresented and concealed facts and/or

misrepresented facts without reasonable grounds for believing same to be true.

22.

In so doing, Defendant intended to induce reliance by Plaintiffon the

misrepresentations, acts and omissions. Plaintiff was unaware of the falsity and justifiably relied

upon said misrepresentations, acts and omissions.

23.

As a direct and proximate causeof Defendant's actions, Plaintiffhas suffered and

continues to suffer actual damages in an amount in excess of the jurisdictional limit to be

determined in accordance with proof at the time of trial.

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Moreover, Defendant's conduct was willful, malicious, oppressive and/or

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fraudulent. As a result of such conduct, Plaintiffseeks punitive and/or exemplary damages against

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Defendant.

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THIRD CAUSE OF ACTION

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(Negligent Misrepresentation)

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(Against All Defendants and Does 1-50)

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set forth herein.

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Plaintiff hereby incorporates and realleges paragraphs 1-24 above as though fully

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As set forth herein, Defendant made numerous representations to Plaintiff that were

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At the time Defendant made these representations to Plaintiff, Defendant had no

false.

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reasonable basis for making the representations, and either knew or should have known its

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representations were false.

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28.

At the time the misrepresentations were made, Plaintiffhad no knowledge regarding

the falsity of the representations, and detrimentally relied upon said representations.
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As a direct and proximate causeof Defendant's actions, Plaintiffhas suffered and

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determined in accordance with proof at the time of trial.

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Complaint

FOURTH CAUSE OF ACTION

(Breach of WrittenContract)

(Against All Defendants and Does 1-50)

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forth herein.

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copyright ownership and split revenues as set forth therein.

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32.
Despite Plaintiff having performed, Defendant breached the agreement by failing to
(1) properly monitor and track usage of the song, (2) enforce the copyright against those who are
laying claim to ownership ofthe song, (3) promote and market the song in order to maximize its
exploitation, (4) properly register it with the Harry Fox Agency and other agencies to ensure
mechanical licenses are easily located and issued for revenue generation, (5) properly register and/or
confirm proper registration with the performance rights organizations to account for and maximize
publishing revenue, and (6) failing to timely tender due and payable royalties to Plaintiff.
33.

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Asaresult ofDefendant's breach ofcontract, Plaintiffsuffers and continues to suffer

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damages in an amount in excess ofthe jurisdictional limit to be determined in accordance with

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proof at the time of trial.

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FIFTH CAUSE OF ACTION

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(Breach OfThe Covenant OfGood Faith And Fair Dealing)

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(Against All Defendants and Does 1-50)

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Plaintiffentered into an agreement with Defendant's predecessor-in-interest

whereupon Defendant inherited the obligation to perform under the agreement to administrate and
manage the exclusive publishing rights to Plaintiffs song. In exchange, Plaintiffagreed to assign

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Plaintiff hereby incorporates and re-alleges paragraphs I-29 as though fully set

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34.

Plaintiff hereby incorporates and realleges paragraphs 1-33 as though fully set forth

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As contracting parties, each party had a duty and obligation to exercise good faith

herein.

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and honor the terms and obligations ofthe agreement, in performance and spirit, and not act in any

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way to circumvent performance orthe acceptance ofbenefit.

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36.

Defendant breached thiscovenant of good faith when it failed to properly

Complaint

administrate, monitor, track, collect revenues, register with third parties andenforce copyright

ownership rights pertaining to the song, aswell asconceal from Plaintiff known facts pertaining to

the song's status.

As a result of Defendant's conduct, Plaintiff sufferedand continues to suffer damages

in anamount in excess of the jurisdictional limit to be determined in accordance with proof at the

time of trial.

STXTH CAUSE OF ACTION

(Breach of Fiduciary Duty)

(Against All Defendants and Does 1-50)

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37.

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Plaintiff hereby incorporates and re-alleges paragraphs 1-37 as though fully

set forth herein.

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By virtue of the special relationship undertaken by Defendant as the exclusive

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manager ofall publishing rights toPlaintiffs song, Plaintiff was put into a position ofhaving to

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instill absolute trust and confidenceto Defendant. When Plaintiff assigned its copyrightownership

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interests to Defendant, it became helpless and unable to enforce, manage, supervise, control or

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otherwise have any legal right to protect and exploit his song. Defendant's obligation not only

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included exploitation of the song, but of taking inrevenue, providing proper accountings and paying

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royalties to Plaintiff, enforcing ownership rights ofthe song, registering it with the appropriate

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licensing and collection agencies, and otherwise properly administrating it. Moreover, Defendant

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had exclusive possession and control over Plaintiffs monies in this regard, as well as exclusive

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rights tocollect, acquire and secure monies owed to Plaintiff from the song's exploitation.

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40.

Defendant breached said fiduciary duties of care owed to Plaintiff.

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41.

By virtue of Defendant's actions alleged herein, Plaintiff has been harmed.

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42.

Asa direct and proximate cause of Defendant's actions, Plaintiff has suffered and

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continues to sufferactual damages in an amount in excess of thejurisdictional limitto be

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determined in accordance with proof at the time of trial.

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43.

In addition, Defendant's conductwas willful, malicious, oppressive and/or

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Complaint

fraudulent. As aresult ofsuch conduct, Plaintiffseeks punitive and/or exemplary damages against

Defendant.

SEVENTH CAUSE OF ACTION

(Negligence)

(Against AllDefendants and Does 1-50)

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set forth herein.

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Defendant owed aduty ofcare to reasonably administrate and manage the exclusive

publishing rights to Plaintiffs song.

46. Defendant breached its duties ofcare to Plaintiff by failing to (1) properly monitor
and track usage ofthe song, (2) enforce the copyright against those who are laying claim to
ownership ofthe song, (3) promote and market the song in order to maximize its exploitation, (4)
properly register it with the Harry Fox Agency and other agencies to ensure mechanical licenses are

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easily located and issued for revenue generation, (5) properly register and/or confirm proper
registration with the performance rights organizations to account for and maximize publishing

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revenue, and (6) failing to timely tender due and payable royalties toPlaintiff.
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As a direct and proximate cause ofDefendant's actions, Plaintiffhas suffered and

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continues to suffer actual damages in an amount in excess ofthe jurisdictional limit to be

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determined in accordance with proofat the time of trial.

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EIGHTH CAUSE OF ACTTON

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(Open BookAccount)

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(Against All Defendants and Does 1-50)

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48.

Plaintiffhereby incorporates and re-alleges paragraphs 1-47 as though fully

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set forth herein.

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49. Pursuant to the agreement, Defendant has an obligation to collect revenue generated
from exploitation of the song and tender monies to Plaintiffas set forth in the agreement. In
accordance therewith, Plaintiffmaintained an open and ongoing account ofsuch monies generated

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Plaintiffhereby incorporates and re-alleges paragraphs 1through 43 as though fully

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44.

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and received.

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Complaint

50.

and owing to Plaintiff.

NINTH CAUSE OF ACTION

(Account Stated)

(Against All Defendants and Does 1-50)

51.

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Plaintiff hereby incorporates and re-alleges paragraphs 1-50 as though fully

set forth herein.

52.

As a result ofexploitation ofthe song, certain monies have been earned and are

being held in an account designated for Plaintiffs song. Defendant has conceded monies are in the
account and owed to Plaintiff.

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Thus, such amounts are currently due and payable to Plaintiff.

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TF.NTH CAUSE OF ACTION

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(Rescission)

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(Against All Defendants and Does 1-50)

54.

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Plaintiff hereby incorporates and re-alleges paragraphs I-53 as though fully

set forth herein.

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As set forth above, the subject agreement fails due to fraud, a lack ofconsideration

and other contractual deficiencies based upon Defendant's actions and inactions. Defendant's refusal

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to perform while maintaining exclusive rights to Plaintiffs song has resulted in Plaintiffs inability
to exploit his copyright ownership, while having such rights held in perpetual abeyance by

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Defendant.

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As a result, an unspecified amount ofsuch funds inthe open book account are due

As a result of such rescission, Plaintiff seeks restoration of hiscopyright ownership

in the composition, as well as any other restitution to which he is entitled to under the law.
57.

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Inaddition, Plaintiff wishes to exercise all statutory reversion rights available to him

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Complaint

WHEREFORE, Plaintiffprays for judgment against Defendant as follows:

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;

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All actual, general and compensatory damages in anamount to bedetermined at the

time of trial;

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All consequential and incidental damages in an amount to be determined at the time

of trial;

Exemplary and/orpunitivedamages in an amountto be determined at the time of

trial where applicable;

Right of rescission and/or restoration ofPlaintiffs copyright ownership interest back

to him, as well as any other restitution the law will provide;

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5.

Right to reversion of his copyright interest based upon applicable statutes;

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6.

For costs ofsuit and attorneys' fees incurred, to the extent allowed by law;

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Prejudgment interestat the legal rate; and

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8.

Any such other and further relief as this Court deems justand proper.

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DATED:

October 20, 2015

THEL^^LFOIM, P.C.

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TRE LOVELL

Attorneys for Plaintiff KENT HARRIS

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DEMAND FOR JURY TRIAI,

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Plaintiffshereby demand a jury trial for all matters so triable.

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DATED:

October 20,2015

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BY:

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Attorbeys for Plaintiff KENT HARRIS

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Complaint