Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO THE ESTATE OF RAFAEL RAPHY LEAVITT REY, COMPOSED OF MARÍA MILAGROS BARRETO CABRERA, SHEILA MARIE LEAVITT BARRETO AND RAFAEL JOSÉ LEAVITT BARRETO Plaintiff, v. SAMUEL SAMMY MARRERO GONZÁLEZ, HIS WIFE, JANE DOE, AND THEIR CONJUGAL PARTNERSHIP; ANGEL TORRES CRUZ, HIS WIFE, MARY DOE, AND THEIR CONJUGAL PARTNERSHIP; EDWIN ROSARIO DECLET, HIS WIFE, SUE DOE, AND THEIR CONJUGAL PARTNERSHIP; KEVIN VEGA VEGA, HIS WIFE, KELLY DOE, AND THEIR CONJUGAL PARTNERSHIP; ISIDRO PÉREZ ORTIZ, HIS WIFE, SALLY DOE, AND THEIR CONJUGAL PARTNERSHIP; FELIX ROBERTO ARCHILLA SANTOS, HIS WIFE, JANET DOE, AND THEIR CONJUGAL PARTNERSHIP; EDGARD NEVÁREZ HERNÁNDEZ, HIS WIFE, FRANCES DOE, AND THEIR CONJUGAL PARTNERSHIP; JOSÉ ARMANDO LÓPEZ HADDOCK, HIS WIFE, SUSAN DOE, AND THEIR CONJUGAL PARTNERSHIP; EDWIN SANTIAGO GARCIA, HIS WIFE, LOURDES DOE, AND THEIR CONJUGAL PARTNERSHIP; FRANCISCO RODRÍGUEZ, HIS WIFE, VANESA DOE, AND THEIR CONJUGAL PARTNERSHIP; VÍCTOR RAMÍREZ RODRÍGUEZ, HIS WIFE, VICTORIA DOE, AND THEIR CONJUGAL Civil No.: COMPLAINT FOR COPYRIGHT INFRINGEMENT, INJUNCTIVE RELIEF AND DAMAGES;
Page 2 of 31 PARTNERSHIP; JOSÉ CHARLIE MALDONADO RODRÍGUEZ, HIS WIFE, JANE ROE, AND THEIR CONJUGAL PARTNERSHIP; CARLOS R. RAMÍREZ CINTRÓN, HIS WIFE, CARLA DOE, AND THEIR CONJUGAL PARTNERSHIP; SMYSO, INC. D/B/A SAMMY MARRERO Y SU ORQUESTA; MADERA EVENTS CORP.; MUNICIPALITY OF HORMIGUEROS; MUNICIPALITY OF UTUADO; CENTRO CULTURAL DE COROZAL, INC.; JAR MARKETING COMMUNICATIONS, INC.; JOHN DOE 1-5. Defendants. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 2 of 31 TO THE HONORABLE COURT: VERIFIED COMPLAINT COMES NOW, Plaintiff the Estate of Rafael Raphy Leavitt Rey, composed of Sheila Marie Leavitt Barreto, María Milagros Barreto Cabrera, and Rafael José Leavitt Barreto, represented herein by its duly authorized representative, María Milagros Barreto Cabrera ( The Estate ) through the undersigned attorneys, and respectfully alleges, states and prays as follows: I. INTRODUCTION 1. The Estate is the owner of a number of copyrighted works, written, composed, registered, recorded, arranged, distributed, and/or performed by Mr. Rafael Raphy Leavitt Rey ( Leavitt ) during his lifetime. 2. Leavitt enjoyed over 40 years of a renowned musical career in Puerto Rico and around the world, as the founder and manager of a salsa band by the name of La Selecta and by composing and writing over 65 works during his career. Many of those works went on to become world-renowned hits.
Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 3 of 31 Verified Complaint Page 3 of 31 3. During Leavitt s career he worked with a number of artists and musicians, both local and international. Among the artists and musicians that Leavitt constantly worked with during his long-standing career, were co-defendants Samuel Sammy Marrero González ( Marrero ), Edgard Nevárez ( Nevárez ) and José Armando López Haddock ( López ). 4. Marrero was constantly hired by Leavitt as the lead singer of La Selecta, while Nevárez and López were hired as musicians. 5. Upon Leavitt s death, Marrero, Nevárez, and López took it upon themselves to create a new musical group called Sammy Marrero y su Orquesta (Sammy Marrero and his Orchestra in English) (the Orchestra ). 6. Unfortunately, rather than focus on performing new and original works and/or legally licensing any works performed, Marrero, Nevárez, López and the rest of the co-defendants, have resorted to performing works owned by Leavitt without any authorization or consent from the actual copyright holders, the Estate. 7. Accordingly, the Estate brings forth this civil action for copyright infringement, damages, and for injunctive relief against the defendants for violations of the United States Copyright Act of 1976, 17 U.S.C. Sec. 101, et seq., as amended, and the Puerto Rico Moral Rights Act, Act 55 of March 9, 2012, as amended. 1 8. This action arises from the willful and unauthorized use, by the defendants identified in Paragraph 12-29 of this Complaint (collectively, the Defendants ), of at least five (5) copyrighted works owned by the Estate. 1 As of the filing of this Complaint, the Puerto Rico Moral Rights Act has not been officially translated by the Commonwealth of Puerto Rico. Plaintiff hereby submits a certified translation of the Puerto Rico Moral Rights Act as Exhibit 1 of this Complaint.
Page 4 of 31 9. Moreover, at least, Defendants latest known and unauthorized public performance of the copyrighted works was a willful violation of the Estate s rights as it took place after Plaintiff demanded that Defendants cease and desist any and all unauthorized use of the copyrighted works of the Estate. 10. Plaintiff hereby requests redress for the willful, unauthorized and blatant infringement of the Defendants, who without an order from this Court, will continue infringing the rights of Plaintiff. II. THE PARTIES 11. Plaintiff, the Estate of Raphy Leavitt, is the rightful owner of all copyrighted works created and owned by Leavitt during his lifetime. The Estate is composed of Mr. Rafael José Leavitt Barreto, resident of Miami, Florida, Ms. María Milagros Barreto Cabrera, resident of Bayamón, Puerto Rico, and Ms. Sheila Marie Leavitt Barreto, resident of Bronx, New York. The Estate is represented in this action by Leavitt s widow, Ms. María Milagros Barreto Cabrera by virtue of the power of attorney constituted in Deed Number 111, of August 13, 2015 before Public Notary. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 4 of 31 12. Upon information and belief, co-defendant Marrero, also known as Sammy Marrero, is a resident of Puerto Rico. Marrero is the lead vocalist of the Orchestra. Upon information and belief, Marrero is married to Jane Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 13. Upon information and belief, co-defendant Ángel Pajay Torres Cruz ( Torres ) is a resident of Puerto Rico. Upon information and belief, Torres plays the piano and the keyboard for the Orchestra. Upon information and belief, Torres is married to Mary Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case.
Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 5 of 31 Verified Complaint Page 5 of 31 14. Upon information and belief, co-defendant Edwin Rosario Declet ( Rosario ) is a resident of Puerto Rico. Upon information and belief, Rosario plays the acoustic bass for the Orchestra. Upon information and belief, Rosario is married to Sue Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 15. Upon information and belief, co-defendant Kevin Vega Vega ( Vega ) is a resident of Puerto Rico. Upon information and belief, Vega plays the percussion (timbales) for the Orchestra. Upon information and belief, Vega is married to Kelly Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 16. Upon information and belief, co-defendant Isidro Pérez Ortiz ( Pérez ) is a resident of Puerto Rico. Upon information and belief, Pérez plays the congas for the Orchestra. Upon information and belief, Pérez is married to Sally Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 17. Upon information and belief, co-defendant Félix Roberto Archilla Santos ( Archilla ) is a resident of Puerto Rico. Upon information and belief, Archilla plays the bongo drum for the Orchestra. Upon information and belief, Archilla is married to Janet Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 18. Upon information and belief, co-defendant Nevárez is a resident of Puerto Rico. Upon information and belief, Nevárez plays the trumpet and serves as music director for the Orchestra. Upon information and belief, Nevárez is married to Frances Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 19. Upon information and belief, co-defendant López is a resident of Puerto Rico. Upon information and belief, López plays the trumpet and serves as band manager for the Orchestra. Upon information and belief, López is married to Susan Doe, who along with the Conjugal
Page 6 of 31 Partnership composed therein, are proper defendants to this case. 20. Upon information and belief, co-defendant Edwin Santiago García ( Santiago ) is a resident of Puerto Rico. Upon information and belief, Santiago plays the trombone for the Orchestra. Upon information and belief, Santiago is married to Lourdes Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 21. Upon information and belief, co-defendant Francisco Rodríguez ( Rodríguez ) is a resident of Puerto Rico. Upon information and belief, Rodríguez plays the saxophone for the Orchestra. Upon information and belief, Rodríguez is married to Vanesa Doe, who along with the Conjugal Partnership composed therein, are proper defendants to this case. 22. Upon information and belief, co-defendants Victor Ramírez, José Charlie Maldonado Rodríguez and Carlos Ramírez Cintrón ( Ramírez, Maldonado, and Ramírez II, respectively) are residents of Puerto Rico. Upon information and belief, the before mentioned codefendants are chorus members of the Orchestra. Upon information and belief, Ramírez, Maldonado and Ramírez II are married to Victoria Doe, Jane Roe, and Carla Doe, respectively, who along with the Conjugal Partnership composed therein respectively, are proper defendants to this case. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 6 of 31 23. Upon information and belief, co-defendant SMYSO, Inc. d/b/a Sammy Marrero y su Orquesta ( SMYSO ), is a for-profit corporation organized under the laws of the Commonwealth of Puerto Rico, with a physical and mailing address of Urb. Bairoa, Rodrigo de Triana AC 3, Caguas, Puerto Rico, 00725. SMYSO can be served through its resident agent, codefendant López at the before mentioned address. Upon information and belief, SMYSO is led by Marrero, and composed of at least the above listed co-defendants. 24. Upon information and belief, co-defendant Madera Events, Corp. ( MEC ) is a for-
Page 7 of 31 profit corporation, organized under the laws of the Commonwealth of Puerto Rico, with a mailing address of Urb. San Miguel, Calle Flor de Maga #7, Mayaguez, Puerto Rico. Upon information and belief, MEC was the promoter of at least one event where the Defendants infringed on Plaintiff s copyrights as described herein. 25. Upon information and belief, co-defendant Centro Cultural de Corozal, Inc. ( CCC ) is a not-for-profit corporation, organized under the laws of the Commonwealth of Puerto Rico, with a mailing address of PO Box 128, Corozal, PR 00783-0128. Upon information and belief, CCC was the promoter of at least one event where the Defendants infringed on Plaintiff s copyrights as described herein. 26. Upon information and belief, co-defendant JAR Marketing Communications, Inc. ( JAR ) is a for-profit corporation, organized under the laws of the Commonwealth of Puerto Rico, with a mailing address of PO Box 472, Utuado, PR 00641. Upon information and belief, JAR was the promoter of at least one event where the Defendants infringed on Plaintiff s copyrights as described herein. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 7 of 31 27. The Municipality of Hormigueros ( Hormigueros ) is a municipality created under the laws of the Commonwealth of Puerto Rico, with capacity to be sued. 28. The Municipality of Utuado ( Utuado ) is a municipality created under the laws of the Commonwealth of Puerto Rico, with capacity to be sued. 29. John Doe 1-5 are any person(s) or entity who is directly infringed, eased or contributed to the violation of Plaintiff s rights. The correct name of these defendants will be provided to this Court when such information is obtained. 30. Upon information and belief, all of the above listed Defendants have, jointly and severally, willfully and without any authorization from Plaintiff, directly and/or contributory
Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 8 of 31 Verified Complaint Page 8 of 31 infringed the rights of Plaintiff by, at least, publicly performing the copyrighted works without permission from Plaintiff. III. JURISDICTION AND VENUE 31. Jurisdiction to is conferred upon this Honorable Court by 28 U.S.C. 1331 and 1338(a) since the matter in controversy arises under the Copyright Act, a federal statute. This Court has Supplemental Jurisdiction to exercise jurisdiction over Plaintiff s causes of action under the Puerto Rico Moral Rights Act pursuant to 28 U.S.C. 1367. 32. Venue of this action properly lies in this Court pursuant to 28 U.S.C. 1391. This Court has personal jurisdiction over the Defendants in this action because they are each doing business in the Commonwealth of Puerto Rico and because each defendant transacted business (directly or through agents) and committed wrongdoing in Puerto Rico, giving rise to the claims asserted in this Complaint. IV. STATEMENT OF THE FACTS Facts Common to All Causes of Action 33. The Estate is the sole and rightful owner of at least sixty five (65) copyright registrations from the United States Copyright Office, including registrations before the Puerto Rico Intellectual Property Office (as provided by the Puerto Rico Moral Rights Act), filed by or on behalf of Leavitt. Among these copyrighted works, the Estate is the sole and rightful owner of the following musical and performance works: a. El Buen Pastor; b. Amor y Paz; c. Difícil de Olvidar; d. La Cuna Blanca; and
Page 9 of 31 e. Jíbaro Soy. (collectively, the Copyrighted Works ) 34. During his lifetime, Leavitt applied for the registration of the song El Buen Pastor and received a Certificate of Copyright Registration from the United States Copyright Office, effective March 2, 2001. A copy of said Certificate is attached as Exhibit 2 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. 35. Leavitt also submitted and obtained a Certificate of Registration for the album De Frente a La Vida-Facing Life, which included the single El Buen Pastor, from the Puerto Rico Intellectual Property Office, with the inscription number 07-194, with a registration date of April 24, 2007. A copy of said Certificate is attached as Exhibit 3 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 9 of 31 36. During his lifetime, Leavitt applied for the registration of the song Amor y Paz and received a Certificate of Copyright Registration from the United States Copyright Office, effective January 18, 1973, and renewed in January 26, 2001. A copy of said Certificate is attached as Exhibit 4 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. 37. Leavitt also submitted and obtained a Certificate of Registration for the album Raphy Leavitt y su Orquesta La Selecta - Mi Barrio, which included the single Amor y Paz, from the Puerto Rico Intellectual Property Office, with the inscription number 07-191, with a registration date of April 24, 2007. A copy of said Certificate is attached as Exhibit 5 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal,
Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 10 of 31 Verified Complaint Page 10 of 31 procedural and/or evidentiary purposes. 38. During his lifetime, Leavitt applied for the registration of the song Difícil de Olvidar and received a Certificate of Copyright Registration from the United States Copyright Office, effective January 18, 1973, and renewed in January 26, 2001. A copy of said Certificate is attached as Exhibit 6 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. 39. Leavitt also submitted and obtained a Certificate of Registration for the album Raphy Leavitt y su Orquesta La Selecta - Mi Barrio, which included the single Difícil de Olvidar, from the Puerto Rico Intellectual Property Office, with the inscription number 07-191, with a registration date of April 24, 2007. See, Exhibit 5. 40. During his lifetime, Leavitt applied for the registration of the song La Cuna Blanca and received a Certificate of Copyright Registration from the United States Copyright Office, effective February 15, 2001. A copy of said Certificate is attached as Exhibit 7 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. 41. Leavitt also submitted and obtained a Certificate of Registration for the album Raphy Leavitt y su Orquesta La Selecta - Jíbaro Soy, which included the single La Cuna Blanca, from the Puerto Rico Intellectual Property Office, with the inscription number 07-192, with a registration date of April 24, 2007. A copy of said Certificate is attached as Exhibit 8 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. 42. During his lifetime, Leavitt applied for the registration of the song Jíbaro Soy and received a Certificate of Copyright Registration from the United States Copyright Office,
Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 11 of 31 Verified Complaint Page 11 of 31 effective February 15, 2001. A copy of said Certificate is attached as Exhibit 9 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. 43. Leavitt also submitted and obtained a Certificate of Registration for the album Raphy Leavitt y su Orquesta La Selecta - Jíbaro Soy, which included the single Jíbaro Soy, from the Puerto Rico Intellectual Property Office, with the inscription number 07-192, with a registration date of April 24, 2007. See, Exhibit 8. 44. Plaintiff is currently the sole owner of all rights, titles and interests in and with regard to the copyright in the Copyrighted Works described in Paragraphs 33-43 of this Complaint, including all moral rights vested in the Copyrighted Works by the Puerto Rico Moral Rights Act. 45. Co-Defendants (excluding MEC, CCC, JAR, Hormigueros, Corozal and Utuado), under the Orchestra, performed at least three (3) of the Copyrighted Works at an event at Viera Discos on or about March 14, 2016, which was transmitted through YouTube and segments through various news outlets. 2 46. On March 21, 2016, Plaintiff, through its counsel, sent Marrero and the Orchestra a cease and desist letter (the Letter ), demanding that Marrero, and any person that was part of the Orchestra and under his control, immediately cease and discontinue any and all unauthorized use of the copyrighted works owned by Plaintiff. A copy of the March 21, 2016 communication is attached as Exhibit 10 of this Complaint and incorporates it by reference herein, making it part of the Complaint for all legal, procedural and/or evidentiary purposes. 2 La Cuna Blanca : https://www.youtube.com/watch?v=rztsyyzefzw; Jíbaro Soy : https://www.youtube.com/watch?v=0j0iqdvekuq; El Buen Pastor : https://www.youtube.com/watch?v=1cvzvjp7qms (last accessed, Sept. 16, 2016).
Page 12 of 31 47. After receipt of the Letter Marrero, López, and Nevárez responded to Plaintiff s counsel through their counsel. 48. Notwithstanding, Defendants to this day do not have a license from the Estate for the use of the Copyrighted Works. 49. Following the March 21, 2016 communication, Defendants have made several public performances where they have performed, without authorization from Plaintiff, at least one of the Copyrighted Works. Specifically, and without limitation Defendants willfully performed, without authorization from Plaintiff and without paying any royalties for such use, one or more of the Copyrighted Works during: (1) an unidentified event in the Municipality of Barceloneta on or about July of 2016; (2) on September 3, 2016, during the Town Festival (Fiestas Patronales) of the Hormigueros municipality, held from August 30 to September 8, 2016; (3) on October 1, 2016, during the National Plantain Festival (Festival Nacional del Plátano) of the Corozal municipality; and (4) on October 2, 2016, during the Town Festival (Fiestas Patronales) of the Utuado municipality. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 12 of 31 50. Upon information and belief, MEC was the promoter of the Town Festival (Fiestas Patronales) of Hormigueros, thereby facilitating, promoting and/or enabling the remaining Defendants to willfully infringe on Plaintiff s rights. 51. Upon information and belief, CCC was the promoter of the National Plantain Festival (Festival Nacional del Plátano) of Corozal, thereby facilitating, promoting and/or enabling the remaining Defendants to willfully infringe on Plaintiff s rights. 52. Upon information and belief, JAR was the promoter of the Town Festival (Fiestas Patronales) of Utuado, thereby facilitating, promoting and/or enabling the remaining Defendants to willfully infringe on Plaintiff s rights.
Page 13 of 31 53. Upon information and belief, neither Hormigueros, Corozal nor Utuado procured a license from any collective rights society such as ASCAP or BMI that would have allowed it to have public performers perform any of the Copyrighted Works. 54. Defendants have inflicted severe damages to Plaintiff by using the Copyrighted Works and the memory of Leavitt, their beloved father and husband, without authorization from his children and widow and in a manner that distorts and is prejudicial to Leavitt s honor and reputation. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 13 of 31 55. Plaintiff, through information and belief claims that other infringements have occurred that may only be known when Defendants disclose the same during this case. 56. Given Defendants disregard to the Estate s rights in and to the Copyrighted Works, Plaintiff has no choice but to seek relief from this Court. V. CAUSES OF ACTION COUNT I (Infringement under the Copyright Act of the work El Buen Pastor ) 57. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 58. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted El Buen Pastor, on at least four (4) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted El Buen Pastor during the event at Viera Discos, during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, during the National Plantain Festival (Fiesta Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016. 59. Defendants conduct constitutes direct infringement of Plaintiff s exclusive rights
Page 14 of 31 under the Copyright Act to publicly perform, reproduce, distribute and/or adapt its copyrighted works. 60. As a direct and proximate result of Defendants acts of infringement alleged herein, Plaintiff has been and continues to be irreparably harmed. 61. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Copyright Act, Plaintiff is entitled to the maximum statutory damages pursuant to 17 U.S.C. 504 and 504(c)(2). In the alternative, at Plaintiff s election, pursuant to 17 U.S.C. 504(B), Plaintiff shall be entitled to punitive money damages and to the actual damages suffered, plus Defendant s profits from its infringing acts, as will be proven at trial. 62. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. COUNT II (Infringement under the Copyright Act of the work Amor y Paz ) 63. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 64. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted Amor y Paz on at least three (3) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted Amor y Paz during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, during the National Plantain Festival (Festival Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 14 of 31
Page 15 of 31 65. Defendants conduct constitutes direct infringement of Plaintiff s exclusive rights under the Copyright Act to publicly perform, reproduce, distribute and/or adapt its copyrighted works. 66. As a direct and proximate result of Defendants acts of infringement alleged herein, Plaintiff has been and continues to be irreparably harmed. 67. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Copyright Act, Plaintiff is entitled to the maximum statutory damages pursuant to 17 U.S.C. 504 and 504(c)(2). In the alternative, at Plaintiff s election, pursuant to 17 U.S.C. 504(B), Plaintiff shall be entitled to punitive money damages and to the actual damages suffered, plus Defendant s profits from its infringing acts, as will be proven at trial. 68. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 15 of 31 COUNT III (Infringement under the Copyright Act of the work Difícil de Olvidar ) 69. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 70. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted Difícil de Olvidar on at least three (3) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted Difícil de Olvidar, during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, during the National Plantain Festival (Festival Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about
Page 16 of 31 October 2, 2016. 71. Defendants conduct constitutes direct infringement of Plaintiff s exclusive rights under the Copyright Act to publicly perform, reproduce, distribute and/or adapt its copyrighted works. 72. As a direct and proximate result of Defendants acts of infringement alleged herein, Plaintiff has been and continues to be irreparably harmed. 73. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Copyright Act, Plaintiff is entitled to the maximum statutory damages pursuant to 17 U.S.C. 504 and 504(c)(2). In the alternative, at Plaintiff s election, pursuant to 17 U.S.C. 504(B), Plaintiff shall be entitled to punitive money damages and to the actual damages suffered, plus Defendant s profits from its infringing acts, as will be proven at trial. 74. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 16 of 31 COUNT IV (Infringement under the Copyright Act of the work La Cuna Blanca ) 75. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 76. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted La Cuna Blanca on at least five (5) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted La Cuna Blanca, during the event at Viera Discos, during the in the event held at the Municipality of Barceloneta,
Page 17 of 31 Puerto Rico at some point during July of 2016 3, during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, during the National Plantain Festival (Festival Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016. 77. Defendants conduct constitutes direct infringement of Plaintiff s exclusive rights under the Copyright Act to publicly perform, reproduce, distribute and/or adapt its copyrighted works. 78. As a direct and proximate result of Defendants acts of infringement alleged herein, Plaintiff has been and continues to be irreparably harmed. 79. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Copyright Act, Plaintiff is entitled to the maximum statutory damages pursuant to 17 U.S.C. 504 and 504(c)(2). In the alternative, at Plaintiff s election, pursuant to 17 U.S.C. 504(B), Plaintiff shall be entitled to punitive money damages and to the actual damages suffered, plus Defendant s profits from its infringing acts, as will be proven at trial. 80. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 17 of 31 COUNT V (Infringement under the Copyright Act of the work Jíbaro Soy ) 81. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 3 The third unauthorized performance of La Cuna Blanca can be viewed at the following link: https://www.youtube.com/watch?v=i0au9njf6_e&feature=youtu.be (last accessed, Sept. 16, 2016)
Page 18 of 31 82. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted Jíbaro Soy on at least two (2) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted Jíbaro Soy, during the public performance upon information and belief during the event at Viera Discos 4 and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016. 83. Defendants conduct constitutes direct infringement of Plaintiff s exclusive rights under the Copyright Act to publicly perform, reproduce, distribute and/or adapt its copyrighted works. 84. As a direct and proximate result of Defendants acts of infringement alleged herein, Plaintiff has been and continues to be irreparably harmed. 85. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Copyright Act, Plaintiff is entitled to the maximum statutory damages pursuant to 17 U.S.C. 504 and 504(c)(2). In the alternative, at Plaintiff s election, pursuant to 17 U.S.C. 504(B), Plaintiff shall be entitled to punitive money damages and to the actual damages suffered, plus Defendant s profits from its infringing acts, as will be proven at trial. 86. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 18 of 31 COUNT VI (Infringement under the Puerto Rico Moral Rights Act of the work El Buen Pastor ) 87. Plaintiff realleges and incorporates by reference each and every allegation of 4 The unauthorized public performance of Jibaro Soy can be viewed at the following link: https://www.youtube.com/watch?v=0j0iqdvekuq (last accessed, Sept. 16, 2016).
Page 19 of 31 Paragraphs 1 through 56 as if fully set forth herewith. 88. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted El Buen Pastor on at least four (4) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted El Buen Pastor, during the event at Viera Discos, during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, during the National Plantain Festival (Fiesta Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016, without providing the proper attribution to its author, Leavitt, and by tarnishing his integrity, honor and reputation through unauthorized and distorted uses of the Copyrighted Works. 89. Defendants conduct constitutes a violation of Art. 2(b)(i) and 2(b)(iii) of the Puerto Rico Moral Rights Act by failing to provide proper attribution to the rightful author of the Copyrighted Works and by tarnishing his integrity, honor, and reputation through unauthorized and distorted use of, in this case, El Buen Pastor. 90. As a direct and proximate result of Defendants acts of infringement under the Puerto Rico Moral Rights Act alleged herein, Plaintiff has been and continues to be irreparably harmed. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 19 of 31 91. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Puerto Rico Moral Rights Act, Plaintiff is entitled to the maximum statutory damages pursuant to Section 11 of the Puerto Rico Moral Rights Act. In the alternative, at Plaintiff s election, pursuant to Section 11 of the Puerto Rico Moral Rights Act, Plaintiff shall be entitled to the actual damages suffered. 92. As a result of Defendants acts and conduct, Plaintiff sustained and will continue
Page 20 of 31 to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. COUNT VII (Infringement under the Puerto Rico Moral Rights Act of the work Amor y Paz ) 93. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 94. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted Amor y Paz on at least three (3) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted Amor y Paz, during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, during the National Plantain Festival (Festival Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016 without providing the proper attribution to its author, Leavitt, and by tarnishing his integrity, honor and reputation through unauthorized and distorted uses of the Copyrighted Works. 95. Defendants conduct constitutes a violation of Art. 2(b)(i) and 2(b)(iii) of the Puerto Rico Moral Rights Act by failing to provide proper attribution to the rightful author of the Copyrighted Works and by tarnishing his integrity, honor, and reputation through unauthorized and distorted use of, in this case, Amor y Paz. 96. As a direct and proximate result of Defendants acts of infringement under the Puerto Rico Moral Rights Act alleged herein, Plaintiff has been and continues to be irreparably harmed. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 20 of 31 97. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Puerto Rico Moral Rights Act, Plaintiff is entitled to the maximum
Page 21 of 31 statutory damages pursuant to Section 11 of the Puerto Rico Moral Rights Act. In the alternative, at Plaintiff s election, pursuant to Section 11 of the Puerto Rico Moral Rights Act, Plaintiff shall be entitled to the actual damages suffered. 98. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. COUNT VIII (Infringement under the Puerto Rico Moral Rights Act of the work Difícil es Olvidar ) 99. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 100. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted Difícil es Olvidar on at least three (3) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted Difícil es Olvidar, during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, during the National Plantain Festival (Festival Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016 without providing the proper attribution to its author, Leavitt, and by tarnishing his integrity, honor, and reputation through unauthorized and distorted uses of the Copyrighted Works. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 21 of 31 101. Defendants conduct constitutes a violation of Art. 2(b)(i) and 2(b)(iii) of the Puerto Rico Moral Rights Act by failing to provide proper attribution to the rightful author of the Copyrighted Works and by tarnishing his integrity, honor, and reputation through unauthorized and distorted use of, in this case, Difícil es Olvidar.
Page 22 of 31 102. As a direct and proximate result of Defendants acts of infringement under the Puerto Rico Moral Rights Act alleged herein, Plaintiff has been and continues to be irreparably harmed. 103. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Puerto Rico Moral Rights Act, Plaintiff is entitled to the maximum statutory damages pursuant to Section 11 of the Puerto Rico Moral Rights Act. In the alternative, at Plaintiff s election, pursuant to Section 11 of the Puerto Rico Moral Rights Act, Plaintiff shall be entitled to the actual damages suffered. 104. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 22 of 31 COUNT IX (Infringement under the Puerto Rico Moral Rights Act of the work La Cuna Blanca ) 105. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 106. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted La Cuna Blanca on at least five (5) occasions. Without limitation, Defendants have publicly performed, reproduced, distributed and/or adapted La Cuna Blanca, during the event at Viera Discos, during the Town Festival (Fiestas Patronales) of Hormigueros of 2016, upon information and belief at the event in the Municipality of Barceloneta, during the National Plantain Festival (Festival Nacional del Plátano) of the Corozal municipality on or about October 1, 2016, and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016, without providing the proper attribution to its author, Leavitt, and by
Page 23 of 31 tarnishing his integrity, honor and reputation through unauthorized and distorted uses of the Copyrighted Works. 107. Defendants conduct constitutes a violation of Art. 2(b)(i) and 2(b)(iii) of the Puerto Rico Moral Rights Act by failing to provide proper attribution to the rightful author of the Copyrighted Works and by tarnishing his integrity, honor, and reputation through unauthorized and distorted use of, in this case, La Cuna Blanca. 108. As a direct and proximate result of Defendants acts of infringement under the Puerto Rico Moral Rights Act alleged herein, Plaintiff has been and continues to be irreparably harmed. 109. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Puerto Rico Moral Rights Act, Plaintiff is entitled to the maximum statutory damages pursuant to Section 11 of the Puerto Rico Moral Rights Act. In the alternative, at Plaintiff s election, pursuant to Section 11 of the Puerto Rico Moral Rights Act, Plaintiff shall be entitled to the actual damages suffered. 110. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 23 of 31 COUNT X (Infringement under the Puerto Rico Moral Rights Act of the work Jíbaro Soy ) 111. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 56 as if fully set forth herewith. 112. Defendants, without authority or license, have publicly performed, reproduced, distributed and/or adapted Jíbaro Soy on at least two (2) occasions. Without limitation,
Page 24 of 31 Defendants have publicly performed, reproduced, distributed and/or adapted Jíbaro Soy, during the event held in Viera Discos and during the Town Festival (Fiestas Patronales) of the Utuado municipality on or about October 2, 2016, without providing the proper attribution to its author, Leavitt, and by tarnishing his integrity, honor, and reputation through unauthorized and distorted uses of the Copyrighted Works. 113. Defendants conduct constitutes a violation of Art. 2(b)(i) and 2(b)(iii) of the Puerto Rico Moral Rights Act by failing to provide proper attribution to the rightful author of the Copyrighted Works and by tarnishing his integrity, honor, and reputation through unauthorized and distorted use of, in this case, Jíbaro Soy. 114. As a direct and proximate result of Defendants acts of infringement under the Puerto Rico Moral Rights Act alleged herein, Plaintiff has been and continues to be irreparably harmed. 115. As a direct and proximate result of Defendants infringement of Plaintiff s exclusive rights under the Puerto Rico Moral Rights Act, Plaintiff is entitled to the maximum statutory damages pursuant to Section 11 of the Puerto Rico Moral Rights Act. In the alternative, at Plaintiff s election, pursuant to Section 11 of the Puerto Rico Moral Rights Act, Plaintiff shall be entitled to the actual damages suffered. 116. As a result of Defendants acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 24 of 31 COUNT XI (Contributory Infringement by MEC and Hormigueros) 117. Plaintiff realleges and incorporates by reference each and every allegation of
Page 25 of 31 Paragraph 1 through 116 as if fully set forth herewith. 118. Upon information and belief, Hormigueros organized and hosted a Town Festival (Fiestas Patronales) on or about August 30, 2016 through September 8, 2016. 119. Upon information and belief, MEC was the promoter for the Town Festival (Fiestas Patronales) of the Hormigueros Municipality where the other co-defendants willfully and knowingly infringed Plaintiff s rights under the Copyright Act and the Puerto Rico Moral Rights Act. 120. Upon information and belief, as part of his promoter responsibilities, MEC organized the Town Festival (Fiestas Patronales) of the Hormigueros Municipality, including, but not limited to, booking the talent, staging the concert, and knew, or should have known that co- Defendants would be playing the Copyrighted Works without a license from the Estate. 121. MEC knowingly facilitated, permitted and enabled the co-defendants to, at least, publicly perform the Copyrighted Works without authorization or license from either the Estate or any collective society such as ASCAP or BMI. 122. MEC and Hormigueros are vicarious and contributory infringers in the manner that they directly and economically benefited from the remaining Defendant s infringing actions as set forth in this Complaint. 123. As a direct and proximate result of MEC & Hormigueros vicarious and contributory infringement, Plaintiffs are entitled to the maximum statutory damages alleged in Count I through Count X of this Complaint against MEC and Hormigueros. 124. As a result of MEC & Hormigueros acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 25 of 31
Page 26 of 31 COUNT XII (Contributory Infringement by CCC and Corozal) 125. Plaintiff realleges and incorporates by reference each and every allegation of Paragraph 1 through 116 as if fully set forth herewith. 126. Upon information and belief, Corozal organized and hosted a National Plantain Festival (Festival Nacional del Plátano) on or about September 30, 2016 through October 2, 2016. 127. Upon information and belief, CCC was the promoter for the Town Festival National Plantain Festival (Festival Nacional del Plátano) of the Corozal Municipality where the other co- Defendants willfully and knowingly infringed Plaintiff s rights under the Copyright Act and the Puerto Rico Moral Rights Act. 128. Upon information and belief, as part of his promoter responsibilities, CCC organized the National Plantain Festival (Festival Nacional del Plátano) of the Corozal Municipality, including, but not limited to, booking the talent, staging the concert, and knew, or should have known that co-defendants would be playing the Copyrighted Works without a license from the Estate. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 26 of 31 129. CCC knowingly facilitated, permitted and enabled the co-defendants to, at least, publicly perform the Copyrighted Works without authorization or license from either the Estate or any collective society such as ASCAP or BMI. 130. CCC and Corozal are vicarious and contributory infringers in the manner that they directly and economically benefited from the remaining Defendant s infringing actions as set forth in this Complaint. 131. As a direct and proximate result of CCC & Corozal s vicarious and contributory infringement, Plaintiffs are entitled to the maximum statutory damages alleged in Count I through
Page 27 of 31 Count X of this Complaint against CCC and Corozal. 132. As a result of CCC & Corozal s acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 27 of 31 COUNT XIII (Contributory Infringement by JAR and Utuado) 133. Plaintiff realleges and incorporates by reference each and every allegation of Paragraph 1 through 116 as if fully set forth herewith. 134. Upon information and belief, Utuado organized and hosted a Town Festival (Fiestas Patronales) on or about September 28, 2016 through October 2, 2016. 135. Upon information and belief, JAR was the promoter for the Town Festival (Fiestas Patronales) of the Utuado Municipality where the other co-defendants willfully and knowingly infringed Plaintiff s rights under the Copyright Act and the Puerto Rico Moral Rights Act. 136. Upon information and belief, as part of his promoter responsibilities, JAR organized the Town Festival (Fiestas Patronales) of the Hormigueros Municipality, including, but not limited to, booking the talent, staging the concert, and knew, or should have known that co- Defendants would be playing the Copyrighted Works without a license from the Estate. 137. JAR knowingly facilitated, permitted and enabled the co-defendants to, at least, publicly perform the Copyrighted Works without authorization or license from either the Estate or any collective society such as ASCAP or BMI. 138. JAR and Utuado are vicarious and contributory infringers in the manner that they directly and economically benefited from the remaining Defendant s infringing actions as set forth in this Complaint.
Page 28 of 31 139. As a direct and proximate result of JAR & Utuado s vicarious and contributory infringement, Plaintiffs are entitled to the maximum statutory damages alleged in Count I through Count X of this Complaint against JAR and Utuado. 140. As a result of JAR & Utuado s acts and conduct, Plaintiff sustained and will continue to sustain substantial immediate and irreparable injury, for which there is no adequate remedy at law. Case 3:16-cv-02769-CCC Document 1 Filed 10/04/16 Page 28 of 31 COUNT XIV (Request for Injunctive Relief) 141. Plaintiff realleges and incorporates by reference each and every allegation of Paragraphs 1 through 140 as if fully set forth herewith. 142. Under Section 502 of the Copyright Act, 17 U.S.C. 502, a Copyright owner is entitled to injunctive relief. 143. By reason of the foregoing and ongoing acts of copyright infringement by Defendants, Plaintiff has and continues to be irreparably injured. 144. Plaintiff hereby seeks from this Court that an order be issued against Defendants, and their agents, servants, employees, successors, licensees, officers, partners, assigns, parent corporations, attorneys, and any person acting in concert with each or any of them, permanently enjoining them from infringing any of the exclusive rights rightfully belonging to Plaintiff over the Copyrighted Works, including but not limited to publicly performing, reproducing, adapting and distributing any and all of the Copyrighted Works, and any other work to which Plaintiff has exclusive ownership to. 145. Plaintiff further requests that the Court enter a Preliminary Injunction to last the pendency of the present case in order to enjoin the Defendants and their agents, servants,