Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Julio Cesar Sanabria Plaintiff v. Andrés Jiménez Hernández; Michelle Negrón and the Conjugal Partnership Constituted by both; Producciones Cuarto Menguate, Inc.; John Doe, Jane Roe, Insurance Company XYZ, Company 123 Case No. Copyright Infringement Non Payment of Mechanical Royalties, Breach of Contract, Moral Rights Violations Injunctive Relief and Related Claims Defendants COMPLAINT TO THE HONORABLE COURT: COMES NOW, the Plaintiff, herein represented by its undersigned attorneys and respectfully states, alleges and prays: JURISDICTION AND VENUE 1. This action arises under the Copyright Laws of the United States, Title 17 U.S.C. 101 the jurisdiction of this Court is founded in Title 28 U.S.C. 1338 (a)(b) and Title 28 1331 of the Judicial Code with Supplementary Jurisdiction founded on Title 28 U.S.C. 1367 of the Judicial Code for violations of Puerto Rico Moral Rights statutes. 2. Venue is proper in this district under 28 U.S.C., Sec. 1391 and 1400(a).
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 2 of 10 2 PARTIES 3. Plaintiff, JULIO CESAR SANABRIA (Sanabria), is of legal age, artist and musician, and resident of Hormigueros, Puerto Rico. 4. Plaintiff is informed and believes and on that basis alleges, that Defendant, ANDRÉS JIMÉNEZ HERNÁNDEZ (Jiménez), is of legal age, married, artist, musician, resident of Orocovis, P.R., and the resident agent of PRODUCCIONES CUARTO MENGUANTE. 5. Plaintiff is informed and believes and on that basis alleges, that Defendant MICHELLE NEGRON is of legal age, married, resident of Orocovis, P.R. 6. CONJUGAL PARTNERSHIP CONSTITUTED BY BOTH, Andrés Jiménez and Michelle Negrón. 7. Plaintiff is informed and believes and on that basis alleges, that Defendant PRODUCCIONES CUARTO MENGUANTE, INC. (Cuarto Menguante), is a for profit domestic corporation, register under #80257, organized under the laws of Puerto Rico in Good Standing under the Department of State, with office in 1717 Ave. Ponce de León, Cond Plaza Inmaculada PH-6, San Juan, P.R. 00909. 8. JOHN DOE and JANE ROE are the fictitious names of entity or society responsible for the sale and manufacturing of the sound recording in controversy whose names and identities are unknown at this moment, but as soon as these names are obtained through discovery the complaint will be amended in accordance with Federal rules and Local District Rules.
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 3 of 10 3 9. INSURANCE COMPANY XYZ is the fictitious name of an insurance company that upon Plaintiff s belief, during all times herein mentioned, had in full effect an insurance policy with one or more of the co-defendants as named insured, with an advertising injury provision or errors and omission or any other provision with coverage over this claim. This insurance company is a corporation and/or legal entity organized under the Laws of the Commonwealth of Puerto Rico or any state of the United States, doing business in Puerto Rico with its principal offices in the Commonwealth of Puerto Rico or any state of the United States. INSURANCE COMPANY XYC is jointly liable for all copyright violations alleged in the complaint. The real name is unknown at this time and will be substituted pursuant to the Federal Rules of Civil Procedure once the real name is made known. 10. Defendant COMPANY 123 is the fictitious name of any company or corporate entity jointly or severally liable for the causes of actions alleged in the complaint. The real name of Company 123 is unknown at this time and will be substituted pursuant to the Federal Rules of Civil Procedure once the real name is made known. FACTUAL ALLEGATIONS 11. Sanabria is a famous puertorrican troubadour trovador singer, producer and musician. 12. On 1997 the Plaintiff reached a verbal agreement with Defendants for the manufacture, promotion and distribution of the sound recording Raíces Puertorriqueñas. The parties agreed to
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 4 of 10 4 split in half all proceeds derived from the sales of the aforesaid sound recording that would be published under the Cuarto Menguante s label property of Defendants. 13. The parties also agreed that Jimenez would pay separately for mechanical royalties owed to Sanabria for the compositions included in the album authored by the Plaintiff. 14. The Raíces Puertorriqueñas album had three (3) songs authored, owned and controlled solely by Sanabria. To this day Sanabria has never received any mechanical royalties payments from defendants. Plaintiff estimates that Defendant has sold thousands of copies of the aforesaid album. 15. The songs in question have been registered in the Copyright Office under Sanabria s name and are entitled as follows: La Niñez Puertorriqueña with registration number PA 1-949-478 Que Mucho Vamo a Gozar with registration number PA1-950-691 Diálogo entre Hermanos with registration number PA 1-951-323 16. Defendants sell the sound recording through several websites in the internet. Defendants have willfully and intentionally excluded Sanabria as the author of the songs mentioned under paragraph fifteen (15). Defendants willful omission of authorship credit to Sanabria has violated his moral right of attribution. 17. In addition Plaintiff has seen Defendants selling the musical production Raíces Puertorriqueñas in several venues in which Jimenez makes a musical performance and through other retails stores in Puerto Rico where Plaintiff has bought the album.
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 5 of 10 5 18. Yet, Plaintiff has not received any payment of mechanical royalties or 50% of the album proceeds despite thousands of sales of the sound recording. FIRST CLAIM COPYRIGHT INFRINGEMENT NON-PAYMENT OF MECHANICAL ROYALTIES 19. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs one (1) through eight-teen (18), as if fully set forth herein. 20. The songs mentioned in paragraph fifteen (15) are copyrighted work under Sanabria s name. 21. All three songs appear on the sound recording Raíces Puertorriqueñas that the Defendants have sold physically and through the Internet. 22. These songs included in this album are being sold by Defendants via the Internet and local retail stores. 23. Defendants have not paid any mechanical royalties to the Plaintiff for the aforementioned sales, notwithstanding thousands of albums sold. 24. The non-payment of royalties is a copyright violation under 17 USC sec. 115. Thus, Plaintiff is entitled to request payment of mechanical royalties, to recover damages, including attorney s fees, and any gains profits and advantages obtained by Defendants through these sales. At present, the amount of such damages, gains, profits and advantages cannot be fully ascertained by Plaintiff, but it s rough estimate is well over $150,000 dollars.
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 6 of 10 6 SECOND CLAIM MORAL RIGHTS VIOLATION FOR LACK OF ATTRIBUTION 25. Plaintiff realleges each and every allegation set forth in Paragraphs one (1) through twenty-four (24), inclusive, and incorporates them herein by this reference. 26. The web pages where Sanabria s songs are being sold have intentionally and willfully omitted Sanabria s authorship credit and/or given authorship credit falsely to Andrés Jimenez. 27. Defendants have also falsely identified Andrés Jiménez s as composer of the songs authored by Sanabria in web pages that promote and sell the Raíces Puertorriqueñas album. 28. The premeditated omission of Sanabria s authorship, or incorrect designation of Andrés Jiménez as author of the songs included on the sound recording Raíces Puertorriqueñas, violate Sanabria s moral rights of attribution under the Moral Rights Statute included in the Civil Code of Puerto Rico. 31 L.P.R.A. 1401(i). The Moral Rights state statute specifically requires that a sound recording must bear the full name of the composer of the musical work or corresponding song. The statute also provides various remedies for this type of violation. Among these, the author is entitled to injunctive relief to prevent any further moral rights violations of attribution. See 31 L.P.R.A. sec. 1401(s). 29. Defendant`s promotion, distribution and sale of the sound recording containing Sanabria s musical compositions without proper
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 7 of 10 7 credit and/or false designation of authorship is a violation of his moral right of attribution entitled to compensation under the law. 30. The Plaintiff is further entitled to recover damages, including attorney s fees, as a result of Defendants moral right violations alleged above. At present, the amount of such damages, cannot be fully ascertained by Plaintiff, but it s rough estimate is well over $150,000 dollars. THIRD CLAIM BREACH OF CONTRACT 31. Plaintiff realleges each and every allegation set forth in Paragraphs one (1) through thirty (30), inclusive, and incorporates them herein by this reference. 32. Plaintiff and Defendants had a verbal agreement to produce, promote, distribute and sell the sound recording entitled Raíces Puertorriqueñas. The parties agreed to split all earnings derived from the sale of the sound recording on a fifty-fifty percent basis. For clarification purposes mechanical royalties due to Sanabria, as composer of the song in the álbum, were not part of this agreement. 33. Defendants have not made a distribution of profits derived from the sale of the album. The Defendants to this day continue to sell the sound recording without distribution of earnings or payment to Sanabria. 34. Defendants non-performance of obligations as above described, constitutes a material breach of the verbal contract
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 8 of 10 8 agreement. Consequently, the Plaintiff is entitled to terminate annul or cancel the agreement. Plaintiff hereby requests that Defendants are precluded from further distribution and sale of the sound recording Raíces Puertorriqueñas. 35. At present, the amount of profits not paid to Plaintiff derived from sales cannot be fully ascertained, but it s rough estimate is well over $150,000 dollars. INJUNCTIVE RELIEF MORAL RIGHTS VIOLATION FOR LACK OF ATTRIBUTION 36. Plaintiff realleges paragraphs one (1) through thirty-five (35) of this complaint. 37. The plaintiff request that the Defendants be held to have willfully omitted Plaintiff s authorship credits of the songs La Niñez Puertorriqueña, Que Mucho Vamo a Gozar and Diálogo Entre Hermanos mentioned in paragraph thirteen (13) when promoting for sale the sound recordings in the Internet. 38. Plaintiff request that the Defendants cease the sale of the sound recording Raíces Puertorriqueñas without the proper attribution of Plaintiff s authorship for the songs stated in paragraph fifteen (15) and thirty-eight (38). 39. The Plaintiff prays for judgment against the Defendants for a preliminary and a permanent injunction ordering that the Defendants and their agents, servants, employees, successors, licensees, officers, partners, assigns, parent corporation, attorney and any person acting in concert or in participation with
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 9 of 10 9 each or any of them, cease from directly or indirectly continue to violate Plaintiff s Moral Rights of attribution. 40. Plaintiff seeks this injunction because the damages caused are irreparable in nature and the damages for the moral rights violations are intangible and for that reason extremely difficult to be ascertained. 41. Furthermore the injunction here sought is the only remedy at law available to Plaintiff that could eviscerate in an expedited manner the damages that are being presently caused by Defendants. PRAYER FOR RELIEF Plaintiffs hereby request that: 42. The Defendants be held to have materially breach the verbal agreement with respect to their obligation to distribute the earnings derived from the Raíces album sales. 43. The Defendants be required to account for all gains, profits and advantages derived from their breach of contract and for other violations of law. 44. The Defendants are ordered to pay to Plaintiff all profits that Defendants have made from the infringements of copyrights. 45. The Defendants are ordered to pay to Plaintiff all damages that Defendants have caused from the violations of moral rights. 46. Plaintiff is granted such other and further relief as the equities of the case may require. 47. Plaintiff prays for judgment against the Defendants for a preliminary and a permanent injunction ordering that Defendants and
Case 3:16-cv-01761 Document 1 Filed 04/18/16 Page 10 of 10 10 their agents, servants, employees, successors, licensees, officers, partners, assigns, parent corporation, attorneys, and any person acting in concert or in participation with each or any of them, cease from directly or indirectly infringe Plaintiff s moral right to attribution by promoting the album Raíces without proper authorship credit. 48. Plaintiff request that the Defendants be held to have infringed the copyrights to the songs, La Niñez Puertorriqueña, Que Mucho Vamo a Gozar and Diálogo Entre Hermanos in Raíces Puertorriqueñas album for non-payment of mechanical royalties. 49. Plaintiff is permitted impoundment and destruction of the infringing works and elimination of the web pages that promote the sale of the album without proper authorship credit. 50. Plaintiffs request that Defendants pay to Plaintiff the costs and disbursements of this action, together with reasonable attorneys fees. 51. Any other relief that this Court may deem proper. JURY DEMAND RESPECTFULLY SUBMITTED In San Juan, Puerto Rico, on this 18 th day of April, 2016. s/roberto SUEIRO DEL VALLE USDC No. 207801 Tulipán 170 Urb. San Francisco San Juan, Puerto Rico00927-6221 Tel. 753-4712 / Fax: 274-0191 Email: rsdv@me.com