CLARK GULDIN, LLC 20 Church Street Montclair, New Jersey 07042 973.707-5346
Attorneys for Plaintiff Jason Van Dyke
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
JASON VAN DYKE,
Plaintiff,
v.
WESLEY SCHULTZ, JEREMY FRAITES, THE LUMINEERS, LLC, and DOES 1-10 et al., Defendants.
Civ No.: )
VERIFIED COMPLAINT
Jury Trial Demanded
Plaintiff Jason Van Dyke (Van Dyke), by his attorneys Clark Guldin, L.L.C., as and for his complaint against Defendants Wesley Schultz (Schultz), Jeremy Fraites (Fraites), The Lumineers, LLC (LLC) and Does 1-10, alleges:
NATURE OF THE ACTION 1. This is an action for declaratory and injunctive relief, damages (including exemplary damages), and attorneys fees for willful and repeated violations by various defendants of plaintiff Jason Van Dykes (Van Dyke) joint copyright ownership rights under the United States Copyright Act, 17 U.S.C. 101 et seq., plaintiffs co-ownership rights in numerous sound recordings and nine jointly-authored musical works and in his partnership rights, property and assets under both the Copyright Act and the Uniform Partnership Act of 1997 as adopted by Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 1 of 24 PageID: 1 [2] the State of New Jersey in N.J.S.A. 42:1 et seq. breach of contract, promissory estoppel, breach of fiduciary duty, wrongful conversion, and unjust enrichment and misappropriation of plaintiffs property rights. JURISDICTION AND VENUE 2. This action is brought, and subject matter jurisdiction lies within this Court, under 28 U.S.C. 1331 and 1338. This Court has federal question jurisdiction because Van Dyke seeks a declaratory judgment and damages against the named Defendants under the Copyright Act of 1976, 17 U.S.C. 101 et seq. This Court has supplemental jurisdiction under 28 U.S.C. 1367 over any claims asserted that arise under state law, including without limitation, claims seeking an accounting, because such claims are integrally interrelated with Van Dykes federal claims and arise from a common nucleus of operative facts. 3. Venue lies within this Court under 28 U.S.C. 1391(b)(1)(3), 1391(c), 1391(d), and 1400(a) because a substantial part of the events or omissions giving rise to Van Dykes claims including but not limited to the formation of a business partnership among Van Dyke and Defendants Schultz and Fraites, and the creation and recording of the musical compositions at issue occurred in the District of New Jersey. THE PARTIES 4. Plaintiff Jason Van Dyke is a professional recording artist, songwriter, instrumentalist, live musical performer and businessman in the entertainment industry. A former resident of Clifton and Jersey City, New Jersey, he now resides in Hayward, California. He has been continuously engaged in professional and commercial activities in the entertainment industry for approximately fourteen years, including recording and rendering live instrumental and vocal performances in New Jersey. 5. Defendant Wesley Schultz is a professional recording artist, songwriter, instrumentalist, live musical performer and businessman in the entertainment industry. A former resident of Ramsay, New Jersey, he now resides in Denver, Colorado. He has been engaged in Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 2 of 24 PageID: 2 [3] professional and commercial activities in the entertainment industry for many years, including recording and rendering live instrumental and vocal performances in New Jersey. 6. Defendant Jeremiah Fraites is a professional recording artist, songwriter, instrumentalist, live musical performer and businessman in the entertainment industry. A former resident of Ramsay, New Jersey, he now resides in Denver, Colorado. He has been engaged in professional and commercial activities in the entertainment industry for many years, including recording and rendering live instrumental and vocal performances in New Jersey. 7. Defendant The Lumineers, LLC is a Colorado limited liability company, which on information and belief is the successor in interest to the partnership formed among Van Dyke, Shultz and Fraites and the transferee of that partnerships property and assets. 8. Defendants Does 1-10 are individuals and entities presently unknown, who transacted business with Defendants Schultz and Fraites exploiting the property and assets of Van Dyke without his consent and without payment of appropriate compensation. FACTS COMMON TO ALL COUNTS A. Van Dyke joins band 6 Cheek with Defendants Schultz & Fraites 9. In the summer of 2008, Van Dyke became the third member of a musical group, joining Defendants Shultz and Fraites after responding to an advertisement they posted on the Internet site known as Craigs List. 10. The band was known as 6 Cheek when Van Dyke joined. At Van Dykes urging, the band name was changed to Wesley Jeremiah. In 2009, while Van Dyke was a member, the bands name was changed again to its current name, The Lumineers and that name appears on an internet podcast of a live performance given by Van Dyke, Schultz and Fraites during July 2009. B. Defendants Confirmation of a Business Partnership With Van Dyke 11. Following Van Dykes acceptance into the band, he communicated with Defendants Schultz and Fraites regarding the business relationship that would prevail among them. Van Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 3 of 24 PageID: 3 [4] Dyke explained to Schultz and Fraites that since he was making financial contributions to development of the band, he did not want to be simply a hired hand. Instead, Van Dyke stated his requirement to be a full-fledged business partner in the band. Schultz and Fraites confirmed that Van Dyke would be such a partner, on equal footing with Schultz and Fraites and with equal rights. Van Dyke, Schultz and Fraites agreed that the partners would contribute equally to partnership expenses and divide equally any profits generated by band activities, including live performances and recordings. C. Van Dykes Reliance on Confirmation of a Business Partnership 12. In reliance on representations that he was an equal business partner in the band, Van Dyke invested substantial time, energy and personal funds into the band, and enthusiastically participated with Schultz and Fraites in the bands activities. Schultz and Fraites requested that Van Dyke participate in joint songwriting sessions, and repeatedly requested that Van Dyke appear and perform at recording sessions they held, typically in their respective family homes in Ramsey, New Jersey. Van Dyke obliged; and because he understood that he was a partner, he neither expected nor received any payment for participation in rehearsals, recording sessions, songwriting sessions or any other band activities. Instead, Van Dyke considered all of his participation, activities and contributions to be continuing investments in the bands development and future success. D. Confirmation of Equal Ownership of Masters and Copyrights 13. Simultaneously with confirmation of his partnership, Van Dyke sought clarification from Schultz and Fraites regarding his role and property interest in songs he was creating and would in future create in collaboration with Schultz and Fraites. On this issue as well, Schultz and Fraites agreed that Van Dyke would be afforded an equal ownership interest to all recordings made by the band i.e., to the so-called master recordings and they further confirmed that copyright ownership in all songs to which Van Dyke contributed as a co-author would be equally divided amongst the three band members. Van Dykes continuing participation with Schultz and Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 4 of 24 PageID: 4 [5] Fraites in all of those recording and songwriting activities was undertaken in full reliance on the property and copyright ownership representations made to him by Schultz and Fraites. E. Participation in Performances, Recordings & Songwriting 14. Van Dyke rehearsed and performed publicly with the band in various clubs and live performance venues, primarily in New York and New Jersey. At rehearsals, the band prepared selected musical works for live performances. Van Dyke, Schultz and Fraites typically shared expenses equally and divided the remaining profits derived from live shows equally amongst themselves. 15. The band also engaged in songwriting sessions at regular band rehearsals, and it worked on developing original musical works. Van Dyke, who had studied music theory formally for many years, actively assisted in organization and creation of the structure and harmonic components of songs that the band created collectively. 16. Schultz often brought basic unfinished and unstructured elements of a prospective song to band rehearsals usually created on his guitar; Van Dyke would then work with Schultz and Fraites as the three musicians sought to create a structural, harmonic and rhythmic format for the song. Sometimes, Van Dyke would add harmonic elements to a song by playing them on piano or organ, a process used during creation of the musical compositions entitled Scotland and Gun Song. On Scotland Van Dyke also created descending complementary melodies, which he played on a Yamaha synthesizer keyboard through an organ patch. On Gun Song, Van Dyke added piano chord voicings, and expanded and modified the songs harmonic structure. 17. On or about November 25, 2008, in an e-mail communication, Schultz again confirmed that Van Dyke should receive an equal share of the songs Scotland and Gun Song, and that all recordings would be co-owned by Van Dyke. 18. Besides creating instrumental components and harmonies, Van Dyke created and arranged vocal harmonies for placement in and throughout various songs he co-authored with Schultz and Fraites. On a song titled Classy Girls Van Dyke added vocal harmonies Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 5 of 24 PageID: 5 [6] throughout, and set the overall arrangement and format of the song. Besides Classy Girls, such vocal harmonies, created and in part sung by Van Dyke, were included on songs entitled Morning Song (original version), Darlene and Flowers In Your Hair. Introducing vocal harmonies was a new musical element for the band, previously absent from earlier musical works created solely by Schultz and Fraites, largely because Fraites was not a frequent singer on the bands recordings 19. At rehearsals it was common for Van Dyke, Schultz and Fraites to discuss amongst themselves the musical elements and arrangement of each co-authored song, with reasonable consideration being given to each members suggestions until each co-authored song was deemed complete and acceptable to all members. For example, although the work entitled Submarines was initially developed by Fraites, it was completed through the collaborative efforts of all of the bands members during numerous songwriting sessions. Some songs, including ones that preceded Van Dykes joining with Schultz and Fraites, underwent further revision by the three partners. For example, elements of Morning Song existed before Van Dyke joined Schultz and Fraites, but became subject to almost constant revision by the three musicians. 20. At the bands live shows, Van Dyke typically performed on piano, organ and drums, and sang back-up vocals. For dramatic effect the band would occasionally switch instruments; Van Dyke would play either piano or drums, while Fraites alternately switched from piano to drums. Schultz typically played guitar, and sang lead vocals as the bands front-man. 21. In the fall of 2008, Van Dyke recommended that the band explore additional venues, such as the college circuit, to expand the bands profile and income, and that the partners should engage a manager to handle much of the business affairs and promotion for the group. Shortly thereafter, Van Dyke introduced Schulz and Fraites to a prospective manager, Katie Arnold (Arnold:), and invited her to attend a live performance by the band. After Van Dyke pursued a continuing dialog with Arnold, by early 2009 she had become the bands official manager and assisted in implementing business affairs and promoting the bands activities and public profile. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 6 of 24 PageID: 6 [7] 22. Arnold assisted with developing the bands biographical materials and creation of a band website on the Internet. Her management services also included communicating with third parties regarding live performance opportunities, and she often collected and disbursed the income from sales of the bands recordings at live performances. Van Dyke, Schultz and Fraites each contributed equally to a monthly management fee paid to Arnold, whose management relationship with the band continued until late March 2011. 23. To further Van Dykes suggestion that the band expand its live performances beyond clubs in the greater New York-New Jersey area. Van Dyke helped Arnold arrange the bands first East Coast mini-tour from Washington, D.C. through Boston during March 2009. Van Dyke also arranged for his relatives to provide free lodging accommodations for the band. F. Songs Co-authored by Van Dyke & Defendants Schultz & Fraites 24. During Van Dykes active involvement in the band with Schultz and Fraites, Van Dyke contributed to the writing and creation of the following nine musical compositions (the Compositions): a) Scotland b) Gun Song c) Morning Song d) Submarines e) Red Hands f) Classy Girls g) Flowers In Your Hair h) Darlene i) Life In The City 25. Musicians engaged in creation of joint works under the Copyright Act will often negotiate among themselves to arrive at an agreed-upon division of copyright ownership rather than equal shares then reflect the negotiated division in a form of written memorandum referred to in the music industry as a split sheet. Van Dyke, Schultz and Fraites did not follow that Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 7 of 24 PageID: 7 [8] procedure. No split sheets were negotiated or executed, resulting in equal-share co-ownership of the nine joint works a result consistent with the equality of ownership interests agreed to among Van Dyke, Schultz and Fraites and upon which Van Dyke relied. 26. During Van Dykes active involvement with Schultz and Fraites, Van Dyke rendered recorded performances on audio recordings of the following compositions (the Recorded Performances): a) Scotland b) Gun Song c) Red Hands d) Classy Girls e) Morning Song 27. Although Van Dyke did not record the works entitled Darlene, Submarines and Flowers In Your Hair, it was Van Dykes understanding that as a partner, he was an equal owner of the master recordings of those compositions made and subsequently marketed by the band. To Van Dykes knowledge, the work entitled Life In the City has not yet been recorded. G. Commercial Release of the First EP 28. In March 2009 the band released its first recording, i.e., a multi-song extended play or EP recording, entitled WESLEY JEREMIAH (the First EP), which included the following recorded works: a) Scotland b) Red Hands c) Gun Song d) White Lie e) Darlene f) Dont Wanna Go g) Everyone Requires A Plan
Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 8 of 24 PageID: 8 [9] 29. Van Dyke co-authored the following Compositions on the First EP: a) Scotland b) Gun Song c) Red Hands d) Darlene 30. The First EP was primarily marketed and sold by the band at live shows. The proceeds from the recordings were equally divided amongst Van Dyke, Schultz and Fraites. H. Departure of Schultz and Fraites to Colorado 31. Following the March 2009 mini-tour, the partners discussed spending Summer 2009 writing and recording new material to pursue a further tour in Fall 2009. The band played a few shows during the summer, but when Van Dyke inquired about lack of progress in developing new material, Schultz revealed that he and Fraites had decided to move to Denver, Colorado, but had not asked Van Dyke to join them because we didnt think youd go. 32. Van Dyke was shocked by Schultz and Fraitess decision to relocate, but was mollified by their agreement to continue recording material the three had completed, and discussions that suggested to Van Dyke he would continue to perform as a member of the band on any East Coast tour. 33. Consistent with those understandings, during August and September 2009, Van Dyke obliged and willingly participated in recording sessions in full reliance on continuation of his partnership interest in all proceeds derived from exploitation of the Compositions and Recorded Performances. During those sessions Van Dyke, Schultz and Fraites recorded material to be included on the bands second recording, an EP entitled THE LUMINEERS (the Second EP). 34. In or about October 2009, Schultz and Fraites moved to Denver, Colorado. They returned to the East Coast for Christmas 2009, and played a live date with Van Dyke during December 2009 at the venue Puck Live in Doylestown, Pennsylvania. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 9 of 24 PageID: 9 [10] 35. However, in March 2011, Schultz and Fraites returned to the East Coast to perform as part of a month-long residency at the live performance site known as The Living Room in New York City. During that residency, Van Dyke attended a show and spoke with Schultz and Fraites, but they failed to enlist his services as a musician to perform at The Living Room, notwithstanding their prior acknowledgment to Van Dyke he would be included in East Coast performances by the band. 36. Upon information and belief, at some time after Shultz and Fraites moved to Colorado, without the knowledge or consent of Van Dyke Shultz and Fraites formed an entity known as The Lumineers, LLC (LLC) as successor in interest to their partnership with Van Dyke, and purported to transfer the property and assets of the partnership to LLC. I. Commercial Release of the Second EP 37. Upon information and belief, on or about December 15, 2009, Schultz and Fraites released the Second EP on their own home-grown ersatz record label i.e. 6 Cheek Records. The Second EP bears a copyright year date of 2009. 38. The Second EP includes the following recordings and compositions co-written by Van Dyke with Schultz and Fraites in Fall 2009. a) Flowers In Your Hair b) Classy Girls c) Submarines d) Gun Song e) Scotland Of these, Van Dyke also performs on Gun Song and Scotland, and perhaps on Flowers In Your Hair. A version of Classy Girls that includes Van Dykes performance was recorded during the Summer 2009 recording sessions for the Second EP, but was released only later, when Schultz and Fraites issued a revised edition of one of their albums in Japan.
Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 10 of 24 PageID: 10 [11] J. Post-2009 Activities of Defendants 39. Upon information and belief, after release of the Second EP it was sold at the Doylestown, Pennsylvania show at which Van Dyke performed in December 2009, and thereafter was continuously sold by or on behalf of Schultz and Fraites at live tour dates throughout the United States and on Amazon.com from late 2009 through the first quarter of 2012. 40. Van Dyke has never received a copy of the finished commercial Second EP. Knowledge of sales of the Second EP has been provided to Van Dyke by Arnold, and Van Dyke has determined that Schultz and Fraites have placed record manufacturing orders at a CD pressing and manufacturing facility in New Jersey known as Oasis Disc Manufacturing. 41. Upon information and belief, Schultz and Fraites have repeatedly ordered records directly from Oasis for shipment to a designated address in Colorado. Those orders confirm that Schultz and Fraites have actively marketed the Second EP, which was recorded and produced with Van Dykes participation and financial assistance. A management representative of Schultz and Fraites has also confirmed to Van Dyke that the bands current management has created additional duplicates of the Second EP to sell at Lumineers shows. 42. Van Dyke has received no accounting or payment from Schultz and Fraites for any sales of the First EP after the summer of 2009, from any sales of the Second EP, or from any marketing of musical works embodied on the several subsequent audio and audio-visual recordings released and/or marketed by Schultz and Fraites, including recordings embodying Van Dykes Recorded Performances and co-authored Compositions. 43. When Schultz and Fraites moved to Denver, they took with them all of the master recordings they made with Van Dyke, and have assumed full control over the Compositions and the Recorded Performances without Van Dykes approval or authorization. 44. To date, Defendants Schultz and Fraites have neither accounted to Van Dyke for any sales of the bands recordings, nor paid any of the income Schultz and Fraites have received from those sales despite inquiries from Van Dyke. Schultz and Fraites continue to assert full control Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 11 of 24 PageID: 11 [12] over the master recordings, and to exploit the Compositions and Recorded Performances throughout the world without Van Dykes approval or authorization, and have provided no notice or accounting to Van Dyke of their worldwide activities pertaining to the Compositions and Recorded Performances. K. False Date of Creation Set Forth by Schultz and Fraites in US Copyright Registrations 45. On or about January 14, 2013, two copyright registration forms were filed in the United States Copyright Office on behalf of Schultz and Fraites. Those registrations bear a false date of creation of the registered musical works. Specifically, the year 2011 is provided on the registration certificates as the Date of Creation, promoting the false impression that the Compositions entitled, Morning Song, Classy Girls Flowers In Your Hair and Submarines were created after Van Dyke was no longer actively performing with, or participating in band activities. 46. The false Date of Creation 2011 concealed that all of the Compositions co-authored by Van Dyke had in fact been completed, recorded and initially released in 2009 during Van Dykes active involvement with the band. Further, Van Dykes name was not included as a co- author on the copyright registrations Schultz and Fraites filed in January 2013. L. Exploitation of the Bands First Album and Subsequent Recordings 47. Upon information and belief, in the first quarter of 2012 Schultz and Fraites signed a record deal with the independent Nashville, Tennessee record label Dualtone Records (Dualtone), a division of Dualtone Music Group, Inc. The Dualtone agreement called for distribution of an album to be self-financed by Schultz and Fraites with the assistance of their new management company, Onto Entertainment, based in Seattle, Washington. Upon information and belief, the deal was also conditioned on Schultz and Fraites retaining ownership of all of master recordings delivered to Dualtone. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 12 of 24 PageID: 12 [13] 48. On or about April 3, 2012 the bands eponymously-titled first full length album, The Lumineers (the First LP) was released by Dualtone and sold on the Internet in Apples iTunes store. 49. Upon information and belief, the First LP was initially released for access via digital Internet downloads and through purchase of a physical CD. Eventually the First LP was also released in vinyl form at a price significantly higher than that for the CD or digital download versions. 50. Upon information and belief, the First LP has also been licensed to Dine Alone Records in Canada, to Inertia in Australia and to Decca Records and Universal Music for the rest of the world including Japan. The First LP has been a major commercial success, on information and belief attaining worldwide album sales of several million copies. Upon information and belief, in January 2013 the First LP peaked at number 2 on Billboards 200 chart a weekly listing of the 200 highest-selling albums and was among the years five top- selling albums by June 2012. It was certified Platinum (1,000,000 copies) in the U.S. and Ireland, and certified Gold (500,000 copies) in the UK, Australia and Canada. The band and the First LP were also nominated for several major music industry awards, including Grammy Awards for Best New Artist and Best Americana Album and Billboards Awards for Top New Artist and Top Rock Artist. 51. The First LP comprises eleven tracks, four of which are among the nine co-authored Compositions identified in Paragraph 24 above: a) Flowers In Your Hair b) Classy Girls c) Submarines d) Morning Song 52. Upon information and belief, on or August 20, 2013, the Lumineers released a deluxe edition of the First LP, which is supplemented with additional bonus recordings, including the work, Darlene a co-authored Composition. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 13 of 24 PageID: 13 [14] 53. Upon information and belief, the recording Classy Girls B version has been commercially released by Schultz and Fraites in various foreign territories, and includes certain of Van Dykes Recorded Performances without Van Dykes authorization, and without payment or any attribution to Van Dyke. 54. Schultz and Fraites have also released a recording entitled the Winter EP, which contains the co-authored Composition Darlene. Dualtone now lists the Winter EP on its website as Sold Out. M. Fraudulent Trademark Registration 55. On or about February 18, 2013, Schultz and Fraites, directly or through their business representatives, registered the mark The Lumineers for several classes with the United States Patent & Trademark Office. The trademark registrations by Schultz and Fraites claimed first use the name and mark The Lumineers as early as July 2009, i.e., during the period of Van Dykes regular participation in the bands activities, and his acknowledged partnership ownership of band assets. However, Schultz and Fraites failed to identify Van Dyke as a co-owner of the mark, instead claiming ownership by an entity identified as The Lumineers, LLC, which did not exist in July 2009. 56. Schultz and Fraites had appropriated the name Lumineers from a different band scheduled to perform at the Lucky Seven nightclub in Jersey City, New Jersey. The club emcee inadvertently introduced Van Dyke, Schultz and Fraites who were then using the name Wesley Jeremiah as The Lumineers. Although members of the audience promptly pointed out the mistake Schultz and Fraites, who had been joined by Van Dyke, elected to adopt The Lumineers as the bands new name. 57. Schultz and Fraites did not consult with or notify Van Dyke that the mark The Lumineers was being registered by the LLC they had established in Denver, i.e., The Lumineers, LLC. Van Dyke was neither advised that his New Jersey partnership assets had been converted and granted to LLC, nor was Van Dyke afforded any ownership, equity or financial interest in either LLC or the mark The Lumineers. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 14 of 24 PageID: 14 [15] 58. Schultz and Fraites have vigorously pursued exploitation of the name and mark The Lumineers on a broad spectrum of merchandise from an array of stylized t-shirts to liquid containers and hoodees, all of which continues to be sold to fans and consumers at the bands shows, on its website and elsewhere. Schultz and Fraites and their record company affiliate, Dualtone, have also bundled such merchandise with the bands recordings for sale to the general public. 59. Van Dyke has received no partner accounting for the income Schultz and Fraites have derived from exploitation of merchandise bearing the mark The Lumineers. N. False Publicity Materials Disseminated by Defendants 60. In biographic and publicity materials that routinely accompany the numerous record releases of Schultz and Fraitess current band, Van Dyke has been ostracized and rendered invisible through a false narrative. Schultz and Fraites promote false claims that they developed the band and its original material in Denver, with no mention whatsoever of Van Dykes significant involvement in developing the band and the Compositions. O. Scotland used as the theme song of the Television Show Reign 61. In September 2013, the co-authored Composition entitled Scotland which had been included on the bands First EP was employed as the theme song of a pilot television show entitled Reign broadcast by defendant CW on its television network. 62. Upon information and belief, Schultz and Fraites developed a business relationship with CW when one of their other works was utilized in a prior television show on CW. 63. According to published reports, in December 2011 CW included the bands song Ho Hey in the season finale of CW's program Hart of Dixie. A national buzz erupted on social media, and eventually that momentum, coupled with repeated back-to-back air play on Seattle radio station KEXP-FM, led to the launch of The Lumineers double platinum single Ho Hey, which became the first single from The Lumineers First LP. 64. Scotland has been continuously used as the theme for Reign since it began to run on the CW network. Although Scotland was falsely publicized as a musical work created Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 15 of 24 PageID: 15 [16] exclusively for the television show, the song had in fact been co-authored by Van Dyke and recorded by the band in 2009. 65. Through his own investigation and research, Van Dyke discovered that the Composition and his Recorded Performance of Scotland was to be the theme song for CWs show Reign. P. Attempted Partial Buy-out of Van Dykes Master Ownership Rights 66. Schultz and Fraites had concealed from Van Dyke both their ongoing relationship with CW and the selection of Scotland as the theme for Reign. Van Dyke was merely informed the song Scotland was being considered for a pilot, and on or about May 15, 2013, Van Dyke was contacted by a management representative of Schultz and Fraites, Ian Imhof. Imhof requested Van Dyke to sign what he described as standard paperwork prepared by the bands lawyer. The proposed agreement called for Van Dyke to convey his co-ownership rights in the master recording of Scotland for $750.00 so it could be incorporated in the pilot. Several days later, Christen Greene (Greene), another management representative from Onto Entertainment in Seattle, informed Van Dyke on behalf of Schultz and Fraites that the recording of Scotland to be used in the show was the one using Van Dykes performance. Also, in May 2013, Fraites confirmed to Van Dyke that his recorded performance was included on the Scotland recording previously delivered to CW and that the television show would soon air. By late May 2013 representatives for Shultz and Fraites increased the master buy-out offer to $1,500.00. 67. Van Dyke was also advised by the management representatives that the musical work Scotland was to be registered by Schultz and Fraites at Broadcast Music, Inc. (BMI) in the names of Van Dyke, Schultz and Fraites, and therefore Schultz and Fraites needed Van Dykes current address and the name of the performing rights organization with which Van Dyke was affiliated. Van Dyke supplied his mailing address and subsequently received a proposed agreement denominated a Side Artist Agreement. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 16 of 24 PageID: 16 [17] 68. Although Van Dyke had not agreed to any reduction in the full one-third interest in Compositions he co-authored and recorded with the band, Greene advised Van Dyke he would retain only a ten percent (10%) co-ownership share of the copyright to the underlying musical Composition. The musical work Scotland has been embodied in the CW show Reign as its theme song without Van Dykes approval or inclusion in the deal-making process with CW. 69. Schultz and Fraites also failed to include Van Dykes name in their registration of Scotland at SoundExchange in Washington, D.C. a performance rights organization that collects royalties for featured performers and owners of copyrights in sound recordings from the streaming of musical content by Internet webcasters and non-interactive digital transmissions via satellite, mobile radio and Internet radio. Van Dykes name has been wrongfully omitted from SoundExchange registrations of all of the Compositions and Recorded Performances. Upon submitting notice of Van Dykes Recorded Performances on Scotland, Gun Song and other recordings made by Van Dyke with Schultz and Fraites, SoundExchange elected to freeze all royalty payments otherwise payable to Van Dyke, Schultz and Fraites until the parties formally resolve their conflicting claims. 70. When Scotland first aired on the CW television show Reign, the screen credits stated Scotland was Written by Jeremy Fraites & Wesley Schultz and Performed by the Lumineers. Through counsel, Van Dyke notified Schultz and Fraites that his name had been wrongfully omitted from the shows screen credits. Although counsel for Schultz and Fraites responded that he would bring the matter to the attention of management, Van Dykes name was repeatedly omitted from all following episodes and airings of Reign. Eventually Reign was designated as a new hit show and has been broadcast in various foreign territories. 71. When the initial communications between counsel failed to result in correction of the screen credits, Van Dyke served a Cease and Desist notice on Schultz and Fraites, claiming that damages were accruing to Van Dyke due to their failure to cause a proper name credit to be afforded to Van Dyke on the theme song Scotland. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 17 of 24 PageID: 17 [18] 72. Upon information and belief, after CW learned of Van Dykes claim, it changed the credit on the theme song Scotland from Written by Jeremy Fraites & Wesley Schultz, Performed by the Lumineers to the more generalized credit, Scotland, by The Lumineers, willfully depriving Van Dyke of the screen credit accorded considerable value and importance in the entertainment industry. Q. Defendants Failure to Provide a Certified Valuation of Partnership Assets To Van Dyke 73. When Van Dykes several grievances and claims against Schultz and Fraites were communicated to their counsel, Van Dykes counsel was promised a certified valuation of partnership assets as a starting point for a possible settlement of all of Van Dykes claims. However, after several weeks of delay in providing such a certified valuation, Schultz and Fraites reneged on their promise to proffer it, and abruptly referred the matter to their litigation counsel, who rejected all of Van Dykes claims.
FIRST COUNT (Declaratory Judgment that Van Dyke is a Co-Author of the Compositions) 74. Van Dyke repeats and realleges the allegations set forth in paragraphs 1 through 73 as if fully set forth herein. 75. Van Dyke contends that he is an equal co-author of the Compositions. 76. Upon information and belief, Defendants Schultz and Fraites contend Van Dyke is not a co-author of the Compositions. 77. By reason of the foregoing, there is a justiciable controversy between Van Dyke and Defendants Schultz and Fraites. 78. Van Dyke is entitled to a declaration that he is a co-author of the Compositions. 79. Van Dyke has no adequate remedy at law.
Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 18 of 24 PageID: 18 [19] SECOND COUNT (Accounting of Co-Ownership Income) 80. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 79 above as if set forth herein at length. 81. Upon information and belief, Defendants Schultz and Fraites have received monies from the exploitation of the Compositions co-authored by Van Dyke and have failed to properly account to Van Dyke, a joint owner, or pay any royalties whatsoever to Van Dyke. 82. By reason of the foregoing, Van Dyke is entitled to an accounting of all monies received by Defendants Schultz and Fraites from the exploitation of the Compositions, which, upon information and belief, would entitle Van Dyke to monies over one million ($1,000,000) dollars. 83. Van Dyke has no adequate remedy at law.
THIRD COUNT (Accounting of Recording Income) 84. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 83 above as if set forth herein at length. 85. Upon information and belief, Defendants Schultz and Fraites have received monies from the exploitation of Van Dykes Recorded Performances and have failed to properly account to Van Dyke or pay any royalties whatsoever to Van Dyke. 86. By reason of the foregoing, Van Dyke is entitled to an accounting of all monies received by Defendants Schultz and Fraites from the exploitation of Van Dykes Recorded Performances, which, upon information and belief, would entitle Van Dyke to monies over one million ($1,000,000) dollars. 87. Van Dyke has no adequate remedy at law. FOURTH COUNT (Conversion of Partnership Assets) 88. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 87 above as if set forth herein at length. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 19 of 24 PageID: 19 [20] 89. Schultz and Fraites have wrongfully converted assets of the partnership entered into by and among Van Dyke, Schultz and Fraites, including but not limited to the master recordings of the Compositions and the Recorded Performances, by willfully depriving Van Dyke of access to the assets and exercising dominion over the assets and other partnership property inconsistent with Van Dykes rights as a partner, and his rights in the management and conduct of the partnership business. 90. Van Dyke is entitled to damages representing his share of the partnership assets and property, to punitive damages, and to the creation of a constructive trust to hold the assets. FIFTH COUNT (Misappropriation of Partnership Assets) 91. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 90 above as if set forth herein at length. 92. Schultz and Fraites have wrongfully misappropriated assets and property of the partnership entered into among Van Dyke, Schultz and Fraites, including but not limited to the master recordings of the Compositions and the Recorded Performances, and the earnings, royalties and other proceeds from exploitation of the Lumineers trademarks and the joint- authorship copyright interests in the Compositions and the Recorded Performances by willfully depriving and withholding Van Dykes share of partnership assets and property in derogation Van Dykes rights as a partner and his rights in the management and conduct of the partnership business. 93. Van Dyke is entitled to damages representing his share of the partnership assets and property, to punitive damages, and to the creation of a constructive trust to hold the assets. SIXTH COUNT (Breach of Fiduciary Duty) 94. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 93 above as if set forth herein at length. 95. By their conduct set forth above, Schultz and Fraites have breached the duty of loyalty they owe to Van Dyke as a partner in the partnership. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 20 of 24 PageID: 20 [21] 96. Van Dyke is entitled to damages proximately caused by Schultz and Fraitess breaches of duty. SEVENTH COUNT (Breach of Express Contract) 97. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 96 above as if set forth herein at length. 98. Schultz and Fraites made contractual promises to Van Dyke concerning the formation and ownership of a partnership among them, and ownership of copyright interests in the Compositions and Recorded Performances. Van Dyke contributed money, time, services and intellectual property in consideration of the promises made by Schultz and Fraites, and fully performed under the contract. 99. Schultz and Fraites breached the contract by failing to perform their contractual promises. 100. Van Dyke is entitled to damages proximately caused by Schultz and Fraitess breaches of contract, and to specific performance of the contract.
EIGHTH COUNT (Breach of Implied Contract) 101. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 100 above as if set forth herein at length. 102. Schultz and Fraites invited Van Dyke to join the band originally known as 6 Cheek, to co-author the Compositions, to perform the Recorded Performances, and to otherwise participate and assist in band activities and development of the bands reputation and financial prospects. 103. Van Dyke performed all of the services requested of him, with the reasonable expectation of compensation for those services. The parties cooperated together for more than a year in a manner consistent with the explicit and implicit understandings among them, creating an implied contract by their conduct. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 21 of 24 PageID: 21 [22] 104. Van Dyke has received no compensation for the services he performed under his implied contract with Schultz and Fraites. 105. Van Dyke is entitled to restitution for the value of the services he performed.
NINTH COUNT (Promissory Estoppel) 106. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 105 above as if set forth herein at length. 107. Schultz and Fraites made clear and definite promises to Van Dyke with a reasonable expectation that Van Dyke would rely on those promises. 108. Van Dyke reasonably relied on the promises made to him by Schultz and Fraites to his substantial detriment. 109. Van Dyke is entitled to damages proximately caused by breaches of promises by Schultz and Fraites. TENTH COUNT (Unjust Enrichment) 110. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 109 above as if set forth herein at length. 111. Van Dyke conferred significant benefits to Schultz and Fraites in connection with inter alia management of the partnership and development of partnership property, and creation of the Compositions and Recorded Performances. Van Dyke reasonably expected to be compensated for the services he performed and the benefits he conferred. Van Dyke has received no compensation in return for those services and benefits, and Schultz and Fraites have been unjustly enriched. 112. Van Dyke is entitled to an award in quantum meruit for the services he performed and the benefits he conferred on Schultz and Fraites.
Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 22 of 24 PageID: 22 [23] REQUEST FOR RELIEF WHEREFORE, Plaintiff demands judgment: (a) On the First Count, an Order declaring that Plaintiff is a co- author of the Compositions; (b) On the Second and Third Counts, an Order directing Defendants to account to Plaintiff for all sums received by Defendants from the exploitation of the Compositions and the Recorded Performances, and to pay over to Plaintiff his proportionate share of such monies, with interest thereon; (c) On the Fourth and Fifth Counts, an award of damages for Plaintiffs share of partnership assets and property, punitive damages, and creation of a constructive trust over the partnerships property and assets; (d) On the Sixth Count, an award of damages proximately caused by Defendants breaches of fiduciary duty; (e) On the Seventh Count, an award of damages proximately caused by Defendants breaches of contract, and an order directing specific performance of the contract;
(f) On the Eighth Count, restitution for the services Plaintiff performed; (g) On the Ninth Count, an award of damages proximately caused by Defendants breaches of promises; (h) On the Tenth Count, an award in quantum meruit for the services Plaintiff performed and the benefits he conferred on Defendants; (i) An award to Plaintiff of the costs and disbursements incurred in this action, including reasonable attorneys' fees; and (j) Such other and further relief as the Court deems just and proper. Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 23 of 24 PageID: 23 [24]
Dated: May 22, 2014 CLARK GULDIN, LLC
By: _/s/ Peter L. Skolnik________ Peter L. Skolnik (PS 4876) Of Counsel 20 Church Street, Suite 15 Montclair, New Jersey 07042 (973) 707-5346 Attorneys for Plaintiff Jason Van Dyke
JURY DEMAND Plaintiff Jason Van Dyke hereby demands a jury trial on all issues so triable. DESIGNATION OF TRIAL COUNSEL Peter L. Skolnik is hereby designated as trial counsel. CLARK GULDIN, LLC By: /s/ Peter L. Skolnik Peter L. Skolnik DATED: May 22, 2014 CERTIFICATION PURSUANT TO R.4:5-1 The undersigned hereby certifies upon information and belief that the within matter is not directly and/or factually related to any other litigation or arbitration between the parties, and no other action or arbitration is contemplated. CLARK GULDIN, LLC By: /s/ Peter L. Skolnik Peter L. Skolnik DATED: May 22, 2014 Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 24 of 24 PageID: 24