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Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 1 of 10 Page ID #:1

1 Neville L. Johnson (SBN 66329)


Jordanna G. Thigpen (SBN 232642)
2 Daniel B. Lifschitz (SBN 285068)
3 JOHNSON & JOHNSON LLP
439 North Canon Drive, Suite 200
4 Beverly Hills, California 90210
Telephone: (310) 975-1080
5 Facsimile: (310) 975-1095
6 Email: njohnson@jjllplaw.com
jthigpen@jjllplaw.com
7 dlifschitz@jjllplaw.com
8 Attorneys for Plaintiffs
HAGEN PUBLISHING, INC. and
9 CARMELA SPENCER as trustee of
10 THE DIANA R. SPENCER TRUST
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
13 HAGEN PUBLISHING, INC., a CASE NO. 2:19-cv-4508
14 California corporation, and
CARMELA SPENCER, as trustee of COMPLAINT FOR:
15 THE DIANA R. SPENCER TRUST
dba SPENCER LARRABEE 1. DIRECT COPYRIGHT
16 PUBLISHING, INFRINGEMENT
17 2. CONTRIBUTORY COPYRIGHT
Plaintiffs, INFRINGEMENT
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vs. DEMAND FOR JURY TRIAL
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CBS TELEVISION
20 DISTRIBUTION, a subsidiary of
21 CBS CORPORATION, a Delaware
corporation, and DOES 1-20,
22 inclusive,
23 Defendants.
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 2 of 10 Page ID #:2

1 Plaintiffs Hagen Publishing, Inc. and Carmela Spencer as trustee of The


2 Diana R. Spencer Trust (collectively “Plaintiffs”), by and through their undersigned
3 attorneys, bring this Complaint against Defendants CBS Television Distribution
4 and Does 1 through 20 (collectively “Defendants”) upon knowledge and belief as to
5 themselves and as to all other matters upon information and belief of their
6 undersigned attorneys. With respect to the facts that are specifically alleged herein
7 on information and belief, Plaintiffs and their undersigned attorneys are informed
8 and believe that those facts are likely to have evidentiary support after a reasonable
9 opportunity for further investigation or discovery, because, among other reasons,
10 the evidence to support those facts is exclusively in Defendants’ possession.
11 NATURE OF THE ACTION
12 1. This is an action for copyright infringement in connection with the
13 United States renewed and extended term of copyright in the musical composition
14 entitled “Theme For The Andy Griffith Show,” composed by Earle Hagen and
15 Herbert Spencer (the “Theme”).
16 PLAINTIFF
17 2. Plaintiff Hagen Publishing, Inc. (“HPI”) is a California corporation
18 domiciled in Riverside County, California.
19 3. Plaintiff Carmela Spencer (“Carmela”) is an individual and the trustee
20 of The Diana R. Spencer Trust, dba Spencer Larrabee Publishing (“DRST”),
21 domiciled in Los Angeles County, California.
22 DEFENDANTS
23 4. Defendant CBS Television Distribution (“CBS” or “Defendant”), on
24 information and belief, is, and at all relevant times was, a subsidiary of CBS
25 Corporation, a Delaware corporation, and CBS Television Distribution’s principal
26 place of business is in Los Angeles County, California.
27 5. Defendants Does 1 through 20 are sued herein by fictitious names for
28 the reason that their true names are unknown to Plaintiffs. Plaintiffs will seek leave
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 3 of 10 Page ID #:3

1 to amend this complaint to allege the true names and capacities of these Defendants
2 when the same have been ascertained. Plaintiffs are informed and believes and
3 based thereon alleges that these fictitiously named Defendants are responsible in
4 some manner for the actions and damages alleged herein.
5 6. Plaintiffs are further informed and believe and based thereon allege
6 that Defendants at all times herein alleged were the agents, employees, servants,
7 joint venturers and/or co-conspirators of each of the other remaining Defendants,
8 and that in doing the things herein alleged were acting in the course and scope of
9 such agency, employment, joint venture and/or conspiracy.
10 JURISDICTION AND VENUE
11 7. Subject matter jurisdiction is appropriate to this Court under 28 U.S.C.
12 §§ 1331 and 1338 because this action arises under the Copyright Laws of the
13 United States (17 U.S.C. §§ 101 et seq.), and this Court has supplemental
14 jurisdiction over any related state law claims under 28 U.S.C. § 1367.
15 8. Venue is appropriate under 28 U.S.C. §§ 1391 and 1400 because a
16 substantial part of the events giving rise to the claims for relied occurred in Los
17 Angeles County, and Defendant’s actions caused injury in Los Angeles County
18 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
19 Background
20 9. In the 1950s, Earle Hagen (“Hagen”) and Herbert Spencer (“Spencer”)
21 collaborated as partners on a number of musical works, including the Theme.
22 10. The Theme was registered with the United States Copyright Office on
23 August 12, 1960 (Registration No. EP145114), a true and correct copy of which is
24 attached hereto as Exhibit A, listing Hagen and Spencer as the authors and
25 Larrabee Music, Inc. (“LMI”) as the publisher. LMI was a California corporation
26 owned equally by Spencer and Hagen. Accordingly, Hagen and Spencer were each
27 50% owners of the full 100% writer’s share of the copyright and 50% owners of the
28 full 100% publisher’s share of the copyright.
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 4 of 10 Page ID #:4

1 11. On November 15, 1967, LMI was dissolved, and the copyright to the
2 Theme automatically reverted to Hagen and Spencer by operation of law. See
3 Johnson v. Storix, Inc., No. 3:14-cv-1873-H-BLM, 2015 U.S. Dist. LEXIS 182192,
4 at *12 (S.D. Cal. Nov. 3, 2015) (“Examples of [copyright] transfers by operation of
5 law include corporate mergers, dissolutions, and intestate succession.”).
6 12. On October 11, 1988, Hagen and Spencer submitted a timely renewal
7 registration for the Theme to the Copyright Office (Registration No. RE397511), a
8 true and correct copy of which is attached hereto as Exhibit B.
9 13. On July 15, 1989, both Hagen and Spencer assigned their copyright
10 interests in the Theme to Larrabee Music, a general partnership formed between
11 Hagen and Spencer, and the assignments were recorded with the Copyright Office
12 on April 30, 1990 (Registration Nos. V2535P516 and V2535P517), true and correct
13 copies of which are attached hereto as Exhibit C.
14 14. Spencer passed away in 1992, and Diana Spencer (“Diana”), Spencer’s
15 successor-in-interest, replaced Spencer as a partner in Larrabee Music. In 1995,
16 DRST, Diana’s successor-in-interest, replaced Diana as a partner in Larrabee
17 Music.
18 15. Hagen passed away in 2008, and the Hagen Family Trust (“HFT”),
19 Hagen’s successor-in-interest, replaced Hagen as a partner in Larrabee Music.
20 16. On March 3, 2017, DRST and HFT entered into a settlement
21 agreement with the Hagen Children’s Trust (“HCT”) and The Hagen Decedent’s
22 Trust (“HDT”), whereby DRST, HFT, HCT, and HDT (the “Settling Parties”)
23 agreed to divide ownership of the copyright to the Theme amongst themselves, as
24 well as to dissolve and wind up Larrabee Music (the “Settlement”).
25 17. After entering into the Settlement, but before dissolving Larrabee
26 Music, the Settling Parties (by and through Larrabee Music) collectively assigned
27 the entirety of the copyright to the Theme to Plaintiffs, with each Plaintiff owning
28 50% thereof. A true and correct copy of this assignment is attached hereto as
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 5 of 10 Page ID #:5

1 Exhibit D.
2 18. By virtue of the foregoing, Plaintiffs are the sole and exclusive owners
3 of the extended renewal term of copyright in the Theme.
4 19. Defendants’ claimed entitlement to exploit the Theme as part of The
5 Andy Griffith Show (the “Series”) is based entirely on a March 1, 1978 agreement
6 (the “1978 Agreement”) executed by CBS’s predecessor-in-interest, Viacom
7 Enterprises, Inc. (“Viacom”), and Mayberry Enterprises (“Mayberry”), the previous
8 owners of the Series, whereby Viacom assumed Mayberry’s rights to the Series.
9 However, CBS has produced no evidence that Mayberry had a subsisting license to
10 the Theme, that these rights were transferrable, or that they encompassed home
11 video or any other associated forms of media, such as electronic sell-through, which
12 did not exist when the Series was produced. The 1978 Agreement relied upon by
13 CBS makes no mention of home video or other associated media.1
14 20. In May 2018, Plaintiff DRST discovered that CBS was selling and/or
15 distributing copies of DVDs of the Series, which includes the Theme. DRST asked
16 CBS for copies of any license agreements permitting them to exploit the Theme as
17 part of a DVD offering of the Series. After CBS reviewed its files, it was unable to
18 provide any such license agreements. However, CBS has refused to enter into a new
19 agreement with Plaintiffs to authorize its exploitation of the Theme in additional
20 media or to otherwise cease conducting such unauthorized exploitation. To the
21 contrary, Plaintiffs have since learned that CBS has licensed the Series to digital
22 services such as iTunes and Amazon for distribution and public performance.
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A true and correct copy of the 1978 Agreement is in possession of all parties, but
27 due to a non-disclosure agreement, it cannot be published in the public record as an
attachment to this Complaint.
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 6 of 10 Page ID #:6

1 FIRST CAUSE OF ACTION


2 DIRECT COPYRIGHT INFRINGEMENT
3 (Against All Defendants)
4 21. Plaintiffs hereby incorporate the allegations set forth above in
5 paragraphs 1 through 20 above, as though fully set forth herein.
6 22. Without Plaintiffs’ authorization, license, or consent, Defendants have
7 reproduced, prepared derivative works from, distributed, and performed publicly
8 the Theme, thereby infringing Plaintiffs’ exclusive rights of copyright in the Theme
9 under the Copyright Act, 17 U.S.C. §§ 106(1)-(4), 501. On information and belief,
10 Defendants have authorized and continue to authorize the reproduction, adaptation,
11 distribution, and/or public performance of the Series, inclusive of the Theme, as
12 physical DVDs, digital downloads, and streaming video.
13 23. Each unauthorized reproduction, preparation of a derivative work,
14 distribution, and/or public performance of the Theme constitutes a separate and
15 distinct act of copyright infringement.
16 24. Defendants’ conduct has been and continues to be intentional, willful
17 and with full knowledge of Plaintiffs’ copyright in the Theme and the direct
18 infringement thereof.
19 25. Pursuant to 17 U.S.C. § 504(b), as a direct and proximate result of
20 Defendants’ direct infringement of Plaintiffs’ copyright, Plaintiffs are entitled to
21 recover their actual damages, including Defendants’ profits from infringement, as
22 will be proven at trial. Alternatively, at Plaintiffs’ election, pursuant to 17 U.S.C. §
23 504(c), Plaintiffs are entitled to recover up to $150,000 in statutory damages for
24 each infringing work.
25 26. Plaintiffs are also entitled to recover their attorneys’ fees and costs
26 pursuant to 17 U.S.C. § 505, and prejudgment interest according to law.
27 27. Defendants are causing, and unless enjoined by the Court, will
28 continue to cause, Plaintiffs irreparable harm for which Plaintiffs have no adequate
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 7 of 10 Page ID #:7

1 remedy at law. Plaintiffs are entitled to an injunction under 17 U.S.C. § 502,


2 prohibiting the continued infringement of the Theme and an order under 17 U.S.C.
3 § 503 directing the impoundment, destruction or other reasonable disposition of all
4 infringing works.
5 SECOND CAUSE OF ACTION
6 CONTRIBUTORY COPYRIGHT INFRINGEMENT
7 (Against All Defendants)
8 28. Plaintiffs hereby incorporate the allegations set forth above in
9 paragraphs 1 through 27 above, as though fully set forth herein.
10 29. Through its conduct alleged herein, Defendants knowingly and
11 systematically induced, caused, materially contributed to and participated in
12 infringing distribution by third parties of the Theme and derivative works thereof,
13 including, without limitation, by way of reproduction and distribution of digital and
14 physical copies, and by public performance via web streaming. Specifically, by
15 licensing to third parties the right to distribute and/or publicly perform the Series,
16 both physically and digitally, the Defendants induced and encouraged these third
17 parties to directly infringe Plaintiffs’ copyright in the Theme.
18 30. Defendants’ conduct has been and continues to be intentional, willful
19 and with full knowledge of Plaintiffs’ copyrights in the Theme, and the
20 contributory infringement thereof.
21 31. Pursuant to 17 U.S.C. § 504(b), as a direct and proximate result of
22 Defendants’ contributory infringement of Plaintiffs’ copyright, Plaintiffs are
23 entitled to recover their actual damages, including Defendants’ profits from
24 infringement, as will be proven at trial. Alternatively, at Plaintiffs’ election,
25 pursuant to 17 U.S.C. § 504(c), Plaintiffs are entitled to recover up to $150,000 in
26 statutory damages for each infringing work.
27 32. Plaintiffs are also entitled to recover their attorneys’ fees and costs
28 pursuant to 17 U.S.C. § 505, and prejudgment interest according to law.
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 8 of 10 Page ID #:8

1 33. Defendants are causing, and unless enjoined by the Court, will
2 continue to cause, Plaintiffs irreparable harm for which Plaintiffs have no adequate
3 remedy at law. Plaintiffs are entitled to an injunction under 17 U.S.C. § 502
4 prohibiting the continued contributory infringement of the Theme, and an order
5 under 17 U.S.C. § 503 directing the impoundment, destruction or other reasonable
6 disposition of all infringing works.
7 PRAYER FOR RELIEF
8 WHEREFORE, Plaintiffs pray for Judgment as follows:
9 On the First Claim for Direct Copyright Infringement:
10 1. For an award of damages, including actual damages and the disgorgement of
11 any and all gains, profits and advantages obtained by Defendants, as a result
12 of their acts of infringement in an amount according to proof at trial, or,
13 alternatively, for an award of statutory damages in an amount of up to
14 $150,000 for each infringing work, according to proof at the time of trial;
15 2. For a temporary, preliminary and permanent injunction, prohibiting the
16 continued infringement of the Theme during the term of copyright; and
17 3. For Plaintiff’s attorneys’ fees and costs.
18 On the Second Claim for Contributory Copyright Infringement:
19 1. For an award of damages, including actual damages and the disgorgement of
20 any and all gains, profits and advantages obtained by Defendants, as a result
21 of their acts of contributory infringement in an amount according to proof at
22 trial, or, alternatively, for an award of statutory damages in an amount of up
23 to $150,000 for each infringing work, according to proof at the time of trial;
24 2. For a temporary, preliminary and permanent injunction, prohibiting the
25 continued infringement of the Theme during the term of copyright; and
26 3. For Plaintiff’s attorneys’ fees and costs.
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COMPLAINT
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1 On All Claims For Relief:


2 1. For costs of suit and attorneys’ fees incurred herein;
3 2. For prejudgment interest at the legal rate; and
4 3. For such other and further relief as the Court deems just and proper.
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6 Dated: May 23, 2019 JOHNSON & JOHNSON LLP

7 By /s Neville L. Johnson
8 Neville L. Johnson
Attorneys for Plaintiffs
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COMPLAINT
Case 2:19-cv-04508 Document 1 Filed 05/23/19 Page 10 of 10 Page ID #:10

1 DEMAND FOR JURY TRIAL


2 Plaintiff hereby demands a trial by jury.
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Dated: May 23, 2019 JOHNSON & JOHNSON LLP
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5 By /s Neville L. Johnson
Neville L. Johnson
6 Attorneys for Plaintiffs
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COMPLAINT