DONIGER / BURROUGHS · Stephen M. Doniger, Esq. (SBN 179314) [email protected] Scott Alan Burroughs, Esq. (SBN 235718) [email protected] David R. Shein, Esq. (SBN

1 SECOND AMENDED COMPLAINT

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Stephen M. Doniger, Esq. (SBN 179314) [email protected] Scott Alan Burroughs, Esq. (SBN 235718) [email protected] David R. Shein, Esq. (SBN 230870) [email protected] DONIGER / BURROUGHS 603 Rose Avenue Venice, California 90291 Telephone: (310) 590-1820 Attorneys for Plaintiff JAIME CIERO

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

JAIME CIERO, an Individual, Plaintiff, v. THE WALT DISNEY COMPANY, a California Corporation; DISNEY ENTERPRISES, INC., a California Corporation; WALT DISNEY MOTION PICTURES GROUP, a California Corporation; WALT DISNEY PICTURES, a California Corporation; WONDERLAND MUSIC COMPANY, INC., a California Corporation; ABC, INC., a California Corporation d/b/a WALT DISNEY RECORDS; DISNEY INTERACTIVE, INC., a California Corporation; BUENA VISTA HOME ENTERTAINMENT, INC., a California Corporation; KRISTEN ANDERSON LOPEZ, an Individual; ROBERT LOPEZ, and Individual; IDINA MENZEL, an Individual; DEMI LOVATO, an Individual; and DOES 1 – 10, Defendants.

Case No.: 2:17-cv-08544 GW (MRWx) Hon. George H. Wu Presiding PLAINTIFF’S SECOND AMENDED COMPLAINT FOR:

(1) DIRECT COPYRIGHT INFRINGEMENT; AND (2) SECONDARY COPYRIGHT INFRINGEMENT JURY TRIAL DEMANDED

Case 2:17-cv-08544-GW-MRW Document 38 Filed 06/11/18 Page 1 of 24 Page ID #:222


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Plaintiff, Jaime Ciero, by and through his undersigned attorneys, hereby prays

to this honorable Court for relief based on the following:

INTRODUCTION

Jaime Ciero is a musician of international acclaim and regard. He has created

and contributed to numerous critically and commercially successful compositions and

songs. Ciero’s original work Volar was misappropriated by the Defendants, and each,

and unlawfully copied and reproduced to create the global hit “Let it Go,” which was

featured as the primary song in, and a narrative basis for, the feature film Frozen.

Ciero’s original work and “Let it Go” bear similarities so striking as to preclude the

possibility that the latter song was independently created. Before exploiting his work,

Defendants at no time contacted Ciero to obtain his consent in regard to their use of

his original material. This action seeks redress for Defendants’ violations of the

Copyright Act.

PARTIES

1. At all times mentioned herein, JAIME CIERO (“Ciero”) was an

individual residing in Los Angeles County, California.

2. Plaintiff is informed and believes and thereon alleges that defendant THE

WALT DISNEY COMPANY is a Delaware corporation with its principal place of

business at 500 South Buena Vista Street, Burbank, California, 91521, duly

authorized to do and doing business in this District. At all times material hereto, THE

WALT DISNEY COMPANY has been engaged in the business of, among other

things, developing, producing, and distributing animated feature films and the

soundtracks thereto. Plaintiff is informed and believes and thereon alleges that

defendant THE WALT DISNEY COMPANY produced and released the film entitled

Frozen and the soundtrack thereto, including “Let it Go” and is a developer and

producer of live performances of Frozen including without limitation “Disney



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Presents Frozen on Ice” and “Frozen: A Broadway Musical” and the soundtracks

thereto.

3. Plaintiff is informed and believes and thereon alleges that defendant

DISNEY ENTERPRISES, INC., is a Delaware corporation with its principal place of


authorized to do and doing business in this District. At all material times, DISNEY

ENTERPRISES, INC., in concert with affiliated companies of THE WALT DISNEY

COMPANY and/or their predecessors in interest, produced, released and distributed

and continues to release, license and distribute, the film entitled Frozen and the

soundtracks thereto, including “Let it Go,” and is a developer and producer of live

performances of Frozen, including without limitation, “Disney Presents Frozen on

Ice” and “Frozen: A Broadway Musical” and the soundtracks thereto.


WALT DISNEY MOTION PICTURES GROUP, INC., is a California corporation

with its principal place of business at 500 South Buena Vista Street, Burbank,

California, 91521, duly authorized to do and doing business in this District. At all

material times, WALT DISNEY MOTION PICTURES GROUP, INC., in concert

with affiliated companies of THE WALT DISNEY COMPANY and/or their

predecessors in interest, developed, produced, released and distributed and continues

to release, license and distribute the film entitled Frozen and the soundtracks thereto,

including “Let it Go,” and is a developer and producer of live performances of

Frozen including without limitation “Disney Presents Frozen on Ice” and “Frozen: A

Broadway Musical” and the soundtracks thereto.


WALT DISNEY PICTURES is a California corporation with its principal place of


authorized to do and doing business in this District. At all material times, WALT



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DISNEY PICTURES, in concert with affiliated companies of THE WALT DISNEY

COMPANY and/or their predecessors in interest, developed, produced, released and

distributed and continues to release, license and distribute the film entitled Frozen

and the soundtracks thereto, including “Let it Go” and is a developer and producer of

live performances of Frozen including without limitation “Disney Presents Frozen on

Ice” and “Frozen: A Broadway Musical” and the soundtracks thereto.


ABC, INC. is a California corporation with its principal place of business at 500

South Buena Vista Street, Burbank, California, 91521, duly authorized to do and

doing business in this District and is doing business as WALT DISNEY RECORDS

(hereinafter “WALT DISNEY RECORDS”). At all material times, WALT DISNEY

RECORDS, in concert with affiliated companies of THE WALT DISNEY

COMPANY and/or their predecessors in interest, developed, produced, released,

licensed and distributed and continues to distribute and license the soundtrack to the

film Frozen and “Frozen: A Broadway Musical,” including “Let it Go.”


BUENA VISTA HOME ENTERTAINMENT, INC. is a California corporation with

its principal place of business at 500 South Buena Vista Street, Burbank, California,

91521, duly authorized to do and doing business in this District. At all material times,

BUENA VISTA HOME ENTERTAINMENT, INC., in concert with affiliated

companies of THE WALT DISNEY COMPANY and/or their predecessors in

interest, developed, released and distributed, and continues to release and distribute

the film Frozen.


DISNEY INTERACTIVE, INC. is a California corporation with its principal place of


authorized to do and doing business in this District. At all material times, DISNEY



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INTERACTIVE, INC., in concert with affiliated companies of THE WALT DISNEY

COMPANY and/or their predecessors in interest, owns and operates Disney websites,

and at all material times has been and is marketing, displaying and distributing the

film entitled Frozen and the soundtrack thereto, including “Let it Go,” as well as

other audiovisual clips incorporating “Let it Go” and the soundtrack to Frozen: A

Broadway Musical.


WONDERLAND MUSIC COMPANY, INC. is a California corporation with its

principal place of business at 500 South Buena Vista Street, Burbank, California,

91521, duly authorized to do and doing business in this District. At all material times,

WONDERLAND MUSIC COMPANY, INC. in concert with affiliated companies of

THE WALT DISNEY COMPANY and/or their predecessors in interest, has been and

is marketing, distributing and licensing “Let it Go”.

10. THE WALT DISNEY COMPANY, DISNEY ENTERPRISES, INC.,

WALT DISNEY MOTION PICTURES GROUP, INC., WALT DISNEY

PICTURES, WALT DISNEY RECORDS, BUENA VISTA HOME

ENTERTAINMENT, INC., DISNEY INTERACTIVE, INC., AND

WONDERLAND MUSIC COMPANY, INC., may at times herein be referred to

collectively as “Disney” or “Disney Defendants.”

11. Plaintiff is informed and believes that KRISTEN ANDERSON LOPEZ

(“K. Lopez”) is an individual doing business in and with the residents of California.

12. Plaintiff is informed and believes that ROBERT LOPEZ (“R. Lopez”) is

an individual doing business in and with the residents of California.

13. Plaintiff is informed and believes that IDINA MENZEL (“Menzel”) is an

individual doing business in and with the residents of California.

14. Plaintiff is informed and believes that DEMI LOVATO (“Lovato”) is an

individual doing business in and with the residents of California.



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15. Plaintiff is informed and believe and thereon alleges that Defendants are

agents and alter egos of one another and share common interests and unity of

interests, as well as shared and ownership between the Defendant entities to the

extent that it would inequitable if the acts in question are treated as those of the

entities alone. Plaintiff is informed and believes and thereon alleges that at all times

relevant hereto each of the Defendants was the agent, affiliate, officer, director,

manager, principal, alter-ego, and/or employee of the remaining Defendants and was

at all times acting within the scope of such agency, affiliation, alter-ego relationship

and/or employment; and actively participated in or subsequently ratified and/or

adopted each of the acts or conduct alleged, with full knowledge of all the facts and

circumstances, including, but not limited to, full knowledge of each violation of

Plaintiff’s rights and the damages to Plaintiff proximately caused thereby.

16. Plaintiff is unaware of the true names and capacities of the defendants

sued herein as DOES 1 through 10, inclusive, and for that reason, sue defendant(s)

under such fictitious names. Plaintiff is informed and believe and based thereon

allege that such fictitiously named defendants are responsible in some manner for the

occurrences alleged herein, and that Plaintiff’s damages as herein alleged were

proximately caused by the conduct of said defendants. Plaintiff will seek to amend

the complaint when the names and capacities of such fictitiously named defendants

are ascertained. As alleged herein, the term “Plaintiff” shall mean the named plaintiff,

and “Defendants” shall mean all named defendants and all fictitiously named

defendants.

JURISDICTION AND VENUE 17. This Court has personal jurisdiction over each and every one of the

Defendants. Venue in this Court is proper under 28 U.S.C. § 1391(c) and 1400(a)



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because one or more Defendants reside and/or carry on business here, and the

wrongful acts of Defendants took place, in whole or in part, in this District.

18. This action arises under the Copyright Act of 1976, Title 17 U.S.C., §

101 et seq.

19. This Court has federal question jurisdiction under 28 U.S.C. § 1331 and

1338 (a) and (b).

GENERAL FACTUAL ALLEGATIONS

20. Plaintiff created and owns exclusive and/or beneficial copyrights and

other rights in a musical composition entitled Volar. Plaintiff also created and owns

exclusive and/or beneficial copyrights and other rights in the sound recording of the

song entitled Volar.

21. The musical composition and sound recording of Volar have been

submitted to the United States Copyright Office for registration, in compliance with

all necessary deposit, payment, and other formalities. In the alternative, to the extent

that Volar was first published abroad, it would be exempt from the registration

requirement per the relevant international treaties and accords.

22. Plaintiff created and owns exclusive and/or beneficial copyrights and

other rights in the musical composition and sound recording of a remix of Volar (the

“Remix”). The musical composition and sound recording of Remix have been

submitted to the United States Copyright Office for registration, in compliance with

all necessary deposit, payment, and other formalities. In the alternative, to the extent

that Remix was first published abroad, it would be exempt from the registration

requirement per the relevant international treaties and accords.

23. Defendants, and each of them, by way of the conduct set forth herein,

infringed Plaintiff’s rights in both the musical composition and sound of Volar and/or

the Remix. This infringement includes, without limitation, Defendants’, and each of



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their, violation of Plaintiff’s exclusive rights, as set forth in 17 U.S. Code § 106, in

and to Volar and the Remix,

24. Volar was registered with ASCAP before the infringement at issue.

25. Volar was a huge international success, reaching millions of listeners and

landing on numerous charts of the most popular and top-performing songs. It has

been professionally recorded and widely and publicly performed in this District and

throughout the United States and the world by means of records, radio, streaming

channels, television, video, audio, and other media. Recordings of and other copies of

Volar have also been widely published, broadcast, and/or sold throughout the United

States, including in this District.

26. Defendants have had an ongoing and continuous opportunity to access to

Volar in various ways including aforementioned public performances, records,

streaming services, interaction with Plaintiff’s collaborators, and broadcasts prior to

the infringement alleged herein.

27. Defendants, and each of them, have continuously and repeatedly

infringed, and are presently infringing, Plaintiff’s copyrights in Volar by performing,

broadcasting, streaming, marketing, selling, licensing, and otherwise exploiting and

monetizing the song, and unauthorized derivative work, entitled “Let it Go”

(“Infringing Song”).

28. Defendants copied substantial qualitative and quantitative portions of the

sound recording and/or musical composition of Volar in creating the Infringing Song,

including constituent elements that are original. Volar and the Infringing Song

include note combinations and structures, hooks, melodies, lyrics, themes,

production, and textures that are at least substantially similar. Plaintiff hereby

incorporates by reference his sound recording and composition of Volar and the

Remix, and the sound recording of the Infringing Song. Similarities between Volar

and Infringing Song include but are not limited to the following:



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29. The choruses of both Volar and Infringing Song are set to a four-

measure repeated harmonic pattern of I-V-vi-IV.

30. The critical “hook” of both Volar and Infringing Song, sets each’s title

lyrics (“Volar” and “Let it go,” respectively) over the same melody. This melody is

characterized by two stark rising gestures: up to scale-step 4, and then from scale-step

1 to scale-step 5. In both Songs, the “hook” falls in the same harmonic position, the

beginning two measures of the four-measure harmonic pattern. The transcription

below, in which both songs are transposed to the key of C Major, shows that these

melodies are nearly identical1:

31. Both Volar and Infringing Song use the hook’s rising gestures to evoke a

sense of freedom and of moving from darkness into light. “Volar” means “to fly,” or

to rise. Indeed, the Catalan version of Infringing Song directly translates “let it go” to

“vol volar.”

32. A substantially similar melody also appears in the chorus of both Volar

and Infringing Song, over the final two measures of the four-measure harmonic

1 The central rising gesture is clear and conspicuous in both Volar and the Infringing

Song.



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pattern. Both melodies start on scale-step 1, climb to scale-step 4, and descend back

to scale-step one. This similarity is illustrated below:

33. There are additional similar melodic elements throughout the chorus,

including strikingly similar vocal inflections and embellishments in later repetitions

of the “hook.”

34. In the second verses of both Volar and Infringing Song, immediately

following the first choruses, both Volar and Infringing Song introduce a new,

staccato (short-note) element, which serves to build momentum to the reprise of

each’s bridge and chorus.

35. In the final measure of its chorus, Volar features a rising vocal melody

set against a descending instrumental line. Volar uses this technique of two musical

elements moving in contrary motion to build momentum into and mark the beginning

of the verse. Infringing Song uses the same technique following its first chorus to

mark the beginning of a new section, and repeats this combination of ascending and

descending lines, in various forms and embellishments, throughout.

36. The Infringing Song is extrinsically and intrinsically similar to Volar.

37. On information and belief, Plaintiff alleges that R. Lopez and K. Lopez,

in concert with Disney, developed, and distributed the Infringing Song for the benefit



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of themselves, and others; and that Disney, Lovato, and Menzel recorded, distributed,

and publicly performed the Infringing Song.

38. On information and belief, Plaintiff alleges that Disney incorporated the

Infringing Song into live and filmed versions of Frozen and into Frozen merchandise,

and distributed, performed, monetized, and otherwise profited from Frozen, Frozen

merchandise, and the exploitation of the Infringing Song in connection with the

foregoing.

39. On information and belief, Plaintiff alleges that Lovato and Menzel have

performed and continue to perform the Infringing Song and reap the benefits of the

Infringing Song, including through the receipt and/or collection of royalties and

licensing fees therefrom.

40. The Infringing Song is the primary musical element of the feature film

Frozen. It is the theme song for the film and plays (on Broadway and on Ice) and the

lead single that was used in marketing and advertising, and throughout the film and

plays. The use of the Infringing Song in connection with Frozen added substantial

value to the film and other productions including “Disney Presents Frozen on Ice”

and “Frozen: A Broadway Musical” and resulted in and continues to result in

substantial added revenue to Defendants.

41. The soundtrack to Frozen, which includes multiple versions of the

Infringing Song, and the performance and display of Frozen itself, have further

enabled Defendants to profit from their unauthorized copy of Volar. The foregoing

material has been widely and successfully marketed, distributed, and monetized in

this District and elsewhere in the United States, and throughout the rest of the world

within the three years prior to the filing of Plaintiff’s initial complaint in this action

and beforehand. The Infringing Song and Frozen have been and continue to be

repeatedly played on theater screens, television, home video, broadcast, streaming



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channels, online platforms, radio, and other outlets and media sources in this District

and elsewhere in the United States, and throughout the rest of the world.

42. A live version of Frozen, “Frozen: A Broadway Musical,” has been

performed on Broadway within the three years before the filing of Plaintiff’s initial

complaint in this action, further shows on Broadway are scheduled to take place

through at least March of 2019 and said shows are presently being marketed and

advertised. On information and belief, Plaintiff alleges that the Frozen musical is also

scheduled to be performed in numerous other theaters in the United States. On

information and belief, it is alleged that the Infringing Song is and will be a primary

and substantial element of said musical performances, and this infringement will

continue unless enjoined by this Court.

43. Plaintiff filed the initial complaint in this action on November 23, 2017.

Dkt. No. 1.

FIRST CLAIM FOR RELIEF

(For Direct Copyright Infringement – Against all Defendants, and Each of

Them)

44. Plaintiff repeats, re-alleges, and incorporates herein by reference as

though fully set forth, the allegations contained in the preceding paragraphs of this

Complaint.

45. Plaintiff is an owner and/or is the beneficial owner of the copyright and

other exclusive rights in Volar’s and the Remix’s composition and sound recording.

46. Defendants had a reasonable possibility to access Volar and/or the Remix

through radio play, broadcast, online streaming, online transmission, download,

Youtube, other video services, or other disseminations. Plaintiff is informed and

believes and thereon alleges that Defendants, and each of them, had access to Volar

and/or the Remix, including, without limitation, through (a) listening to the

recordings via Plaintiff’s or others’ public performances or recordings of Volar



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and/or the Remix, (b) streaming or downloading Volar and/or the Remix online, (c)

listening to the Volar and/or the Remix through a third-party, including parties with

whom Plaintiff has worked with and collaborated, (d) viewing the sheet music or

other written indicia reflecting Volar and/or the Remix. Plaintiff further alleges that

the Lopez Defendants collaborated, interacted, and worked with at least one musician

who also worked with Plaintiff, and would have a possibility to access the material at

issue through that musician.

47. The striking similarities between Volar and the Infringing Song also

establishes a possibility to access.

48. The Infringing Song is an unauthorized reproduction and copy the

musical composition and sound recording of Volar and/or the Remix, and/or is an

unlawful derivative thereof. Defendants’ distribution, public performance, display,

and creation of a derivative work of Volar and/or the Remix infringes Plaintiff’s

exclusive and/or beneficial rights in Volar and/or the Remix in violation of the

Copyright Act, 17 U.S.C. § 106 et seq. During the three years before the date of the

filing of the initial complaint in this action, and to date, the Disney defendants, and

each of them, have committed separate and successive violations of Plaintiff’s

copyright by, inter alia,(a) reproducing the Infringing Song in copies or

phonorecords, including, without limitation, in the soundtracks to the Frozen film and

the “Frozen: A Broadway Musical,” and in merchandise and toys, including dolls; (b)

distributing copies or phonorecords of the Infringing Song to the public by sale or

other transfer of ownership, or by rental, lease, or lending, including by, without

limitation, selling and distributing hard copies of the Infringing Song as a single and

as part of the soundtrack to Frozen and “Frozen: A Broadway Musical” to and

through Amazon.com, Walmart and Target; (c) licensing and distributing the film

Frozen through various online channels, including without limitation, Netflix,

Amazon Video, broadcast and cable television, and by DVD and BlueRay; and, (d)



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performing the Infringing Song publicly, at “Disney Presents Frozen on Ice” and

“Frozen: A Broadway Musical,” and in television broadcasts and online streaming of

the movie Frozen.

49. Defendants did not seek or receive Plaintiff’s consent or authorization to

copy, appropriate, sample, cover, reproduce, or interpolate any portion of Volar

and/or the Remix. Yet, the Infringing Song incorporates and includes a substantial

and material portion of Volar and/or the Remix in its composition and performance.

50. Defendants’ conduct has at all times been, and continues to be, knowing,

willful, and with complete disregard to Plaintiff’s rights.

51. As a proximate cause of Defendants’ wrongful conduct, Plaintiff has

been irreparably harmed.

52. The Infringing Song copies quantitatively and qualitatively distinct,

important, and recognizable portions of Volar and/or the Remix, as discussed herein.

53. On information and belief, Plaintiff alleges that within the three years

before the date of the filing of the initial complaint in this action and to the present

date, the Disney Defendants, and each, have committed separate and successive

violations of Plaintiff’s copyright interest in the sound recording and musical

composition of Volar and/or the Remix , without limitation, as follows: (a)

authorizing the live performance of the Infringing Song in connection with “Frozen:

A Broadway Musical,” “Disney Presents Frozen on Ice,” ABC’s “The Wonderful

World of Disney: Disneyland 60,” which was recorded and broadcast on or about

February 10, 2016, and ABC’s “Rockin Eve” television production which was

recorded and broadcast by ABC on or about December 31, 2015; (b) performing the

Infringing Song publicly at live productions and other performances of Frozen,

including without limitation, “Frozen: A Broadway Musical” and “Disney Presents

Frozen on Ice” (c) publicly performing the Infringing Song in live performances,

including the live performance of ABC’s “The Wonderful World of Disney:



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Disneyland 60” which was recorded and broadcast on or about February 10, 2016,

and publicly performing the Infringing Song in the live performance of ABC’s

“Rockin Eve” television production which was recorded and broadcast by ABC on or

about December 31, 2015; (d) authorizing the reproduction, distribution and sale the

records and digital downloads of the Infringing Song, through the execution of

licenses, and/or actually reproducing, and/or selling and distributing physical or

digital or electronic copies of the Infringing Song through various physical and online

sources and applications, including without limitation, through Amazon.com,

Walmart, Target and iTunes, as (without limitation) a single, an instrumental and/or

as part of the soundtracks for the film Frozen or “Frozen: A Broadway Musical”; (d)

publicly performing, broadcasting, displaying, showing, streaming, and distributing

the film Frozen, including without limitation, on or through Google Play, Amazon.

iTunes, Netflix, Disney’s affiliated television stations including ABC and the Disney

Channel, through the sales of DVDs of Frozen on shop.disney.com at

https://www.shopdisney.com/frozen-dvd-1353755, and at other retail outlets

including Walmart, Target, Best Buy and Amazon.com, and at IMAX theaters; (e)

streaming and/or publicly performing or authorizing the streaming and/or public

performance of the Infringing Song through, without limitation, Spotify, YouTube

and/or on Disney’s online channels including at

https://video.disney.com/watch/disney-s-frozen-let-it-go-sequence-performed-by-

idina-menzel-4ecd3e729706a16e5090f1de ; (f) participating in and furthering the

aforementioned infringing acts, and/or sharing in the proceeds therefrom, all through

substantial use of Volar and/or the Remix in and as part of the Infringing Song,

packaged in a variety of configurations and digital downloads, mixes and versions,

and performed in a variety of ways including, but not limited to, audio and video; and

(g) marketing, advertising, selling, and distributing merchandise such as videos and

other copies of the physical and digital copies of the film, dolls and other toys which



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incorporate a recording of the Infringing Song and perform the Infringing Song,

apparel and other merchandise, and other product that reference or incorporate, in

whole or in part, the Infringing Song and/or Frozen; (h) licensing, sub-licensing,

assigning, and transferring rights in and to the Infringing Song, including to toy

manufacturers who in turn have created and sold toys, including dolls that perform

recordings of the Infringing Song; (i) selling tickets to, passes to, copies of, and

access to live and recorded performances of the Infringing Song, Frozen, “Disney

Presents Frozen on Ice,” “Frozen: A Broadway Musical” or other programs, projects,

events, or theme park exhibitions that incorporate, in whole or in part, the Infringing

Song.

54. Without limitation, Plaintiff alleges that within the three years before the

filing of the initial complaint in this action and to date, WALT DISNEY RECORDS

has licensed the master recordings for the Infringing Song for profit, including to toy

manufactures who sell Frozen themed toys incorporating a recording of the Infringing

Song and has marketed, sold and distributed physical or digital or electronic copies of

the Infringing Song otherwise exploited the Infringing Song for profit without

authorization and it continues to do so.


filing of the initial complaint in this action and to date, WONDERLAND MUSIC

COMPANY, INC., has licensed the Infringing Song for profit, including by licensing

it to the producers of “Frozen: A Broadway Musical” and “Disney Presents Frozen

on Ice,” and to toy manufacturers who sell Frozen themed toys incorporating a

recording of the Infringing Song, and has otherwise exploited the Infringing Song for

profit without authorization and it continues to do so.


filing of the initial complaint in this action and to date, DISNEY ENTERPRISES,

INC., has licensed the film entitled Frozen, distributed said film and has created and



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produced and/or authorized the creation and production of “Frozen: A Broadway

Musical” and “Disney Presents Frozen on Ice,” each of which production

incorporates and Infringing Song, and otherwise exploited Frozen and the Infringing

Song for profit without authorization and it continues to do so.


filing of the initial complaint in this action and to date, BUENA VISTA HOME

ENTERTAINMENT, INC., has distributed film entitled Frozen in the United States

online and through the sales of DVDs and BlueRay.


filing of the initial complaint in this action and to date, THE WALT DISNEY

COMPANY, WALT DISNEY MOTION PICTURES GROUP, INC and WALT

DISNEY PICTURES have marketed, distributed and licensed the film entitled

Frozen and/or authorized the marketing, distribution and license of said film, and

have otherwise exploited the film and its soundtrack for profit.


filing of the initial complaint in this action and to date, DISNEY INTERACTIVE,

INC., has marketed, distributed and sold the film entitled Frozen and the soundtrack

thereto online, including on Disney branded websites.

60. Plaintiff is informed and believes and thereon alleges that within the three

years before the filing of the initial complaint in this action and to date, R. Lopez and

K. Lopez have committed separate and successive violations of Plaintiff’s copyright

interest in the sound recording and musical composition of Volar and/or the Remix

by, without limitation: licensing the Infringing Song for use in Frozen: A Broadway

Musical, creating, developing, and producing, a reprise of the Infringing Song for

“Frozen: A Broadway Musical.” On information and belief, Plaintiff alleges that said

reprise of Let It Go is a distinct and different version or recording of the Infringing



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Song than the version or recording of the Infringing Song used and incorporated in

the Frozen film.

61. Plaintiff is informed and believes and thereon alleges that within the

three years before the filing of the initial complaint in this action and to date, Menzel

has committed separate and successive violations of Plaintiff’s copyright interest in

the sound recording and musical composition of Volar and/or the Remix by, without

limitation: publicly performing and recording the Infringing Song at various

performances and in connection with various television productions, including

without limitation, at a December 31, 2015 performance in Times Square, New York

City for ABC’s “Rockin Eve” which was recorded and broadcast on ABC on

December 31, 2015; and, at a January 26, 2018 performance at the Nicollete Mall in

Minneapolis, Minnesota for “Superbowl LIVE,” presented by Verizon.

62. On information and belief, Plaintiff alleges the foregoing performances

by Menzel and other like performances fall outside the scope of any ASCAP license

because the performances were not limited to the particular venue or concert. Instead,

each alleged performance was intended to be, and was, recorded for television

broadcasts and/or online streaming and were subsequently broadcast on national

television in the United States or streamed online.


years before the filing of the initial complaint in this action and to date, Lovato has

committed separate and successive violations of Plaintiff’s copyright interest in the

sound recording and musical composition of Volar and/or the Remix by, without

limitation by streaming and/or publicly performing or authorizing the streaming

and/or public performance of Lovato’s recording of the Infringing Song on her

official YouTube channel at https://www.youtube.com/watch?v=kHue-HaXXzg.


years before the date of the filing of Plaintiff’s initial complaint in this action and to



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date, Defendants, and each of them, captured, performed, and distributed songs and

recordings thereof that were unauthorized copies of the sound recording and/or

musical composition of Volar and/or the Remix, and exploited said material in

numerous commercial ways, including without limitation by incorporating it in

Frozen, of which the Infringing Song is a primary component.


years before the date of the filing of Plaintiff’s initial complaint in this action and to

date, Defendants, and each of them, infringed Plaintiff’s copyrights in the sound

recording and/or musical composition of Volar and/or the Remix by creating

infringing derivative works from Volar and/or the Remix and by performing and

publishing the Infringing Song to the public, including without limitation, through

live and recorded performances and sales of product incorporating the same.

66. Plaintiff is informed and believes and thereon alleges that Defendants,

and each of them, have infringed Plaintiff’s rights in the sound recording and/or

musical composition of Volar and/or the Remix without Plaintiff’s authorization or

consent.

67. Due to Defendants’, and each of their, acts of infringement, Plaintiff has

suffered general and special damages, including without limitation, lost profits,

royalties, license fees, and other revenues, in an amount to be established at trial.

68. Due to Defendants’ acts of copyright infringement as alleged herein,

Defendants, and each of them, have obtained direct and indirect profits they would

not otherwise have realized but for their infringement of Plaintiff’s rights in Volar

and/or the Remix. As such, Plaintiff is entitled to disgorgement of Defendants’ profits

directly and indirectly attributable to Defendants’ infringement of Plaintiff’s rights in

Volar and/or the Remix in an amount to be established at trial.

69. To the extent that the infringement at issue took place, or will take place,

after the date of Plaintiff’s registration of Volar and/or the Remix, Plaintiff will have



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the right to elect to recover statutory damages pursuant to 17 U.S.C. § 504(c), in an

amount to be proven at trial.


after the date of Plaintiff’s registration of the Volar and/or the Remix, Plaintiff is

entitled to recover his reasonable attorneys’ fees, pursuant to 17 U.S.C. § 505.

71. Plaintiff is entitled to recover his costs pursuant to 17 U.S.C. § 505.

72. Defendants’ conduct is causing and, unless enjoined by this Court, will

continue to cause Plaintiff irreparable injury that cannot be fully compensated or

measured in monetary terms. Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a

permanent injunction prohibiting the reproduction, distribution, sale, public

performance or other use or exploitation of the Volar and/or the Remix and Infringing

Song.

73. Because Defendants’ conduct as alleged herein was willful and/or

reckless, Plaintiff is entitled to seek enhanced damages, such as statutory damages of

up to $150,000.00 and/or to preclude Defendants from proffering certain affirmative

defenses and legal positions.

SECOND CLAIM FOR RELIEF

(For Indirect Copyright Infringement – Against all Disney Defendants, R.

Lopez, K. Lopez, Menzel and Each of Them)

74. Plaintiff repeats, re-alleges, and incorporates herein by reference as

though fully set forth, the allegations contained in the preceding paragraphs of this

Complaint.

75. Disney Defendants, R. Lopez, K. Lopez, Menzel and each of them are

vicariously and/or contributorily liable for copyright infringement in connection with

the unauthorized exploitation of the Volar and/or the Remix.

76. Within the three years before the filing of Plaintiff’s initial complaint in

this Action, Disney Defendants, R. Lopez, K. Lopez, Menzel, and each of them, with



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knowledge that each of their and third parties’ conduct constituted infringement,

materially contributed to, caused, induced, assisted with, and otherwise facilitated the

unauthorized exploitation of the sound recording and/or musical composition of

Volar and/or the Remix and the creation and monetization of the Infringing Song,

including the reprise of the Infringing Song performed at “Frozen: A Broadway

Musical” and recorded and distributed as part of the soundtrack for said Broadway

production.

77. Within the three years before the filing of Plaintiff’s initial complaint in

this Action, Disney Defendants, R. Lopez, K. Lopez, Menzel , and each of them, had

the right and ability to preclude or put a stop to the unauthorized exploitation of the

Volar and/or the Remix and the creation and monetization of the Infringing Song, and

failed to exercise those rights. And Disney Defendants, R. Lopez, K. Lopez, Menzel,

and each of them, profited through the infringement, including by and through the

collection and/or receipt of license fees and royalties.

78. Within the three years before the filing of the Plaintiff’s initial complaint

in this action, Menzel performed “Let it Go” and authorized the recording thereof for

purposes of broadcasting and other transmission or performance of said recordings

and within the same time period has failed to act to repudiate or halt any license to

use her recorded performance despite her having the ability and opportunity to do so.

79. On information and belief, within the three years before the filing of

Plaintiff’s initial complaint in this action Disney Defendants have granted licenses for

the use of the Infringing Song and have had the right, ability and opportunity to: (a)

forbid the use of the Infringing Song in “Disney Presents Frozen on Ice” and in

“Frozen: A Broadway Musical,” and/or withdraw or repudiate any licenses for same;

(b) halt the reproduction and sales of DVDs of Frozen and/or withdraw or repudiate

any licenses for same; (c) halt the public performance of Frozen, “Disney Presents

Frozen on Ice” and in “Frozen: A Broadway Musical” and/or withdraw or repudiate



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any licenses for same; (d) halt the reproduction, distribution, sales, and performances

of the Infringing Song and/or withdraw or repudiate any licenses for same and to

remove recordings or other iterations of the Infringing Song from channels and

applications owned or controlled by Disney, including without limitation, its websites

and its Spotify and iTunes channels.

80. On information and belief, within the three years before the filing of

Plaintiff’s initial complaint in this action R. Lopez and K. Lopez have had the right,

ability and opportunity to: (a) supervise, control, and/or stop the use of the Infringing

Song in “Disney Presents Frozen on Ice” and in “Frozen: A Broadway Musical”

and/or withdraw or repudiate any licenses for same, including any license provided to

BMI or any other performing rights organization; (b) halt the reproduction and sales

of DVDs of Frozen; (c) halt the public performance of Frozen, “Disney Presents

Frozen on Ice” and in “Frozen: A Broadway Musical”; (d) halt the reproduction,

distribution, sales, and performances of the Infringing Song by calling distributors to

halt sales and performances of the Infringing Song.

81. Defendants’, and each of their, infringing conduct as alleged herein has

caused actual damage to Plaintiff and resulted in profits to the Defendants, and each

of them.

82. Due to Defendants’, and each of their, acts of infringement, Plaintiff has

suffered general and special damages, including without limitation, lost profits,

royalties, license fees, and other revenues, in an amount to be established at trial.

83. Due to Defendants’ acts of copyright infringement as alleged herein,

Defendants, and each of them, have obtained direct and indirect profits they would

not otherwise have realized but for their infringement of Plaintiff’s rights in Volar

and/or the Remix. As such, Plaintiff is entitled to disgorgement of Defendants’ profits

directly and indirectly attributable to Defendants’ infringement of Plaintiff’s rights in

Volar and/or the Remix in an amount to be established at trial.



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after the date of Plaintiff’s registration of Volar and/or the Remix, Plaintiff will have

the right to elect to recover statutory damages pursuant to 17 U.S.C. § 504(c), in an

amount to be proven at trial.


after the date of Plaintiff’s registration of Volar and/or the Remix, Plaintiff is entitled

to recover his reasonable attorneys’ fees, pursuant to 17 U.S.C. § 505.

86. Plaintiff is entitled to recover his costs pursuant to 17 U.S.C. § 505.

87. Defendants’ conduct is causing and, unless enjoined by this Court, will

continue to cause Plaintiff irreparable injury that cannot be fully compensated or

measured in monetary terms. Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a

permanent injunction prohibiting the reproduction, distribution, sale, public

performance or other use or exploitation of Volar and/or the Remix and the Infringing

Song.

88. Because Defendants’ conduct as alleged herein was willful and/or

reckless, Plaintiff is entitled to seek enhanced damages, such as statutory damages of

up to $150,000.00 and/or to preclude Defendants from proffering certain affirmative

defenses and legal positions. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment against all

Defendants, and each of them individually, as follows:

1. A declaration that Defendants have infringed Plaintiff’s rights in Volar

and/or the Remix in violation of the Copyright Act;

2. A declaration that Defendants are directly, vicariously and/or contributorily

liable for copyright infringement, as applicable;

3. A permanent injunction requiring Defendants and their agents, servants,

employees, officers, attorneys, successors, licensees, partners, and assigns,



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and all persons acting in concert or participation with each or any one of

them, to cease directly and indirectly infringing, and causing, enabling,

facilitating, encouraging, promoting, inducing, and/or participating in the

infringement of any of Plaintiff’s rights protected by the Copyright Act;

4. For a constructive trust to be entered over any films, recordings, products,

files, online programs, and other material, and all revenues resulting from

the exploitation of same, for the benefit of Plaintiff.

5. For either statutory damages or the actual damages sustained by Plaintiff

pursuant to 17 U.S.C. § 505;

6. For special and compensatory damages in an amount according to proof in

excess of the jurisdictional limit of this court;

7. For an accounting of all revenues relating to the infringement at issue

and/or costs savings and financial benefits resulting from the infringement.;

8. For injunctive relief from any and all present and/or future exploitation;

9. For pre-judgment and post-judgment interest;

10. For attorney’s fees, where applicable, interest, and costs of suit; and

11. For such other and further relief as to this Court seems just and proper.

Plaintiff demands a jury trial on all issues so triable pursuant to Fed. R. Civ. P.

38 and the 7th Amendment to the United States Constitution.

Respectfully submitted,

Dated: June 11, 2018 By: /s/ Scott Alan Burroughs Scott Alan Burroughs, Esq. David R. Shein, Esq.

DONIGER / BURROUGHS Attorneys for Plaintiff


Documents

DONIGER / BURROUGHS · Stephen M. Doniger, Esq. (SBN 179314) [email protected] Scott Alan Burroughs, Esq. (SBN 235718) [email protected] David R. Shein, Esq. (SBN