Negron v Universal

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

EMILIO A. NEGRÓN BASMESON, Plaintiff, vs. UNIVERSAL MUSIC PUBLISHING MGB, S.A. DE C.V.; EMI MUSIC MEXICO, S.A. DE C.V.; EDITORIAL TELEVISA P.R./ MEXICO, A/K/A EDITORIAL TELEVISA PUERTO RICO, INC.; TELEVISA INTERNATIONAL; TELEVISA, S.A. DE C.V.; A,B,C, INSURANCE, AND JOHN DOE

Defendants,

CIVIL NO.: REQUEST FOR TRIAL BY JURY COPYRIGHT ACT INFRINGEMENT, PERMANENT INJUNCTION, INTELLECTUAL PROPERTY RIGHTS VIOLATION

COMPLAINT

COME NOW the Plaintiffs, Emilio A. Negrón Basmeson (hereinafter “Plaintiff”

or “Mr. Negrón”), through the undersigned attorneys and respectfully state, and pray

as follows:

I. Nature of the Action

1. This is an action for direct and contributory infringement under the Copyright Act of

1976, 17 U.S.C §§ 101 et seq. (the “Copyright Act”); for violation of the moral rights

under Puerto Rico Intellectual Property Act of 1988, Act No. 55 of March 9,2012, (31

LPRA § 1401) (the “The Moral Rights Act of Puerto Rico ”).

II. Jurisdiction and Venue

Case 3:13-cv-01077 Document 1 Filed 02/01/13 of 13

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1. This Honorable Court has original and exclusive jurisdiction over this

action for copyright infringement pursuant to 28 U.S.C. §§1331 and 1338(a).

2. This Court also has supplemental jurisdiction pursuant to 28 USC sec.

1367(a) for state law claims of violation of the Moral Rights Act of Puerto Rico, Act No.

55 of March 9, 2012.

3. Venue is proper in this court under 28 U.S.C. §§1391(b); 1391(c) and

1400(a) because the Defendants are residents of this district and/or because a

substantial part of the events giving rise to the claims occurred in this district.

4. This Court has personal jurisdiction over the Defendants in this action

because they are each doing business in the Commonwealth of Puerto Rico and because

each defendant transacted business (directly or through agents) and committed

wrongdoing in Puerto Rico, giving rise to the claims asserted in this complaint.

Accordingly, Venue is also proper in this judicial district.

III. The Parties

1. Plaintiff Emilio A. Negrón Basmeson is a composer, resident of Puerto

Rico.

2. Defendant Universal Music Publishing, S.A. De C.V. is and/or Universal

Music Publishing MGB, S.A. de C.V are the Mexican subsidiaries of Universal Music

Publishing Group, with their place of residence at Hegel 721, Bosque de Chapultec first

Section, C.P. 11580, Delegación Miguel Hidalgo, Mexico, Federal District. The address

of Universal Music Publishing, S.A. De C.V. is Yautepec No. 107, Colonia Condesa,

Código Postal 06140, Delegación Cuauhtémoc, México, Distrito Federal.


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3. Universal Music Publishing Group is the successor in interest to BMG

Music Publishing NA, Inc.

4. Defendant EMI MUSIC Mexico, S.A. de C.V. has place of residence at

Calle de Río Tigris, No. 33, Colonia Cuauhtémoc, Delegación Cuauhtémoc, México,

D.F., C.P. 06500. Upon information and belief, at all relevant times, EMI MUSIC Mexico

was and continues to be engaged in the business of producing, distributing and selling

phonorecords and video recordings that benefit from the Work in controversy.

5. Defendant, Editorial Televisa Puerto Rico/ Mexico also know as Editorial

Televisa Puerto Rico, Inc. is a corporation duly authorized to do business in Puerto

Rico. Also included, as party defendants are Televisa International and Televisa S.A. de

C.V. The aforementioned Defendants are subsidiaries of Grupo Televisa, S.A.B.

(hereinafter “Televisa’), with their place of residence at AV. Vasco de Quiroga 2000.

Edif. A, Piso 4. Delegación Álvaro Obregón Col. Santa Fe C.P. 01210 México, Distrito

Federal and/or Avenida Chapultepec No. 18, Colonia Doctores. Delegación

Cuauhtémoc. C.P. 06724, México, Distrito Federal. – México. Upon information

and belief, at all relevant times, Televisa was and continues to be engaged in the

business of producing, distributing, transmitting and otherwise commercially

exploiting television programming through the television airwaves, which utilizes

recorded versions of musical compositions and sound recordings.

6. Upon information and belief, Defendants A, B, C, D, E and F Insurance are

corporations organized and existing under the laws of the Commonwealth of Puerto

Rico with its principal place of business in San Juan, Puerto Rico. Upon information and


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belief, each of the previously identified Defendants has an insurance policy in place

with each or some of the corporations (A, B, C, D, E, F Insurance) to cover any

infringement, errors, omissions, and negligence, among other casualties that could arise

from their business operations. The correct names of these Defendants will be provided

to this Honorable Court when such information is obtained.

7. John Doe is any person or entity who directly infringed, eased or

contributed to the violations of the Plaintiff’s rights. The correct name of this Defendant

will be provided to this Honorable Court when such information is obtained.

IV. Factual Allegations

1. Plaintiff Emilio A. Negrón Basmenson is the author and legal owner of the

copyrights to the musical composition “Solo Quédate en Silencio (5 Minutos)”

(herein after the “musical composition” or “the work”), registered in the

National Copyright Institute of the United Mexican States under 03-2000-

011312370800-01 since January 26, 2000. See Exhibit 1. Subsequently, such work

was also registered by Plaintiff in the United States’ Copyright Office under PA

1-769-680, 2011-12-12. See Exhibit 2.

2. The Work contains wholly original materials constituting copyrightable subject

matter under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. (“Copyright

Act”).

3. The Plaintiff has complied at all relevant times and in all respects with the

Copyright Act, and have a registered copyright for the Work. Moreover,

Plaintiff has a copyright registration issued by the United Mexican States, which


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is a party, along with the United States of America, of several international

treaties concerning copyright protection.

4. Recently, Plaintiff learned that the subject work had been performed and

recorded without his authorization by a group name “Rebelde” or “RBD” and

that it had become a huge success having sold millions of copies. In addition,

the musical composition had being use as the “theme” song of a TV Show

named “Rebelde” or “RBD” (“the Show”). The song was played at the

beginning and the end of the Show.

5. Furthermore, the song has been performed and recorded by over 70 artists or

music groups, in different styles that range from “rancheras” to “salsas”, etc.,

causing the musical composition to be altered without the author’s

authorization.

6. The Plaintiff has never authorized any party to use his music composition and

has never received any compensation for the use of his music composition.

7. Defendants willfully authorized third parties to use, reproduce, synchronize,

publicly perform, transmit, distribute and create derivative works of the Work

without the authorization of the Plaintiff, in violation of the Copyright Act.

8. Furthermore, the Work was mutilated because multiple parties reproduced,

recorded and performed the song creating different versions of the musical

composition.


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9. Since on or about 2004, Defendants have used, exploited, reproduced,

broadcasted, publicly performed, and/or distributed the Work in interstate

commerce in violation of the Plaintiff’s copyrights.

10. In addition, the Defendants have used, broadcasted, publicly performed, and

reproduced the Work, without the Plaintiff’s authorization, in connection to TV

commercials and promotion of the Show transmitted through the airwaves, the

Internet and, upon information and belief, the radio.

11. Each defendant contributed to, participated in and benefited from the use,

reproduction, distribution, broadcasting, publicly performance, creation of

derivative works, and/or exploitation of the Plaintiff’s Work.

12. Since Defendants misidentified the composer in the phono records, DVDs, public

performances and the Show, third parties do not become aware of who is the

real author of the song, further jeopardizing Plaintiff’s ability to obtain his due

credit to exploit his creation, and causing plaintiff irreparable harm as the result

of Defendant’s willful and illegal actions.

13. In addition, the Defendants have undermined Plaintiff’s image and reputation

and have caused emotional injury to the Plaintiff for an amount not easily

ascertained.

14. The actions taken by Defendants have caused and are still causing irreparable

harm to Plaintiff and, in order to prevent even greater harm in the future,

Defendants should be enjoined. The Plaintiff has no other course of action


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except for the Defendants to be enjoined for continuing to infringe Plaintiff’s

copyrights and ordered to compensate the Plaintiff.

15. The irreparable harm that the Plaintiff has and continues to suffer can only be

attributed to the Defendants’ willful actions.

V. FIST CAUSE OF ACTION DIRECT AND/OR CONTRIBUTORY COPYRIGHT INFRINGEMENT

(17 U.S.C. §§ 101 ET SEQ.)

16. The Plaintiff re-alleges and incorporates by reference paragraphs 1 through 15 as

if fully set forth herein.

17. The Plaintiff is the sole author and legal owner of the Work and has the exclusive

rights to use, copy, prepare derivative works, distribute, publicly perform,

exploit, transmit, and authorize any of these acts. The Work is an original work,

copyrightable under Copyright Act.

18. At all times relevant herein, Plaintiff has complied with the Copyright Act and

has secured the exclusive rights and privileges in and to the copyrights in the

Work.

19. Defendants, knowingly and willfully and without authorization of the Plaintiff -

the rightful copyright owner- authorized the musical composition to be used,

reproduced, broadcasted, publicly performed, distributed, used to create

derivative works, be otherwise exploited, and/or facilitated the Show that

contains parts and all of the Work.

20. Defendants had “constructive notice” that Plaintiff was the sole legal owner of

the work “Solo Quédate En Silencio” since January 26, 2000 by virtue of the


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Mexican Copyright Registration obtained in that same date, but opted to ignore

the Register. See Exhibit 1.

21. The Defendants' acts constitute direct and/or contributory infringement of the

Plaintiff’s copyrights in the Work in violation of the Copyright Act.

22. Defendants' infringements have been committed willfully, and have been and

are being engaged in with utter disregard for the Plaintiff’s intellectual property

rights.

23. Defendants are fully aware of their responsibilities as they has been continuously

involved in direct or indirect production and/or distribution of phonorecords

and video recordings, for their own use and subsequent licensing and

distribution for third parties for decades.

24. The Defendants' direct and/or contributory copyright infringements have

caused, and will continue to cause the Plaintiff to suffer substantial injuries,

losses, and damages to its rights in the Work. Plaintiff has not received any

revenues from the Defendants’ wrongful conduct and their exploitation of an

infringing product.

25. The Defendants have been unjustly enriched by their illegal exploitation and

marketing of the Work and works derived thereof.

26. By means of the actions complained of herein, Defendants have directly or

contributory infringed and, unless enjoined by the Court, will continue to

infringe the Plaintiff’s copyrights in and relating to the Work, by reproducing,

distributing, publicly performing and placing upon the market the Work or


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portions thereof which were copied from the Plaintiff’s copyrighted Work and

preparing derivative works thereof.

27. Such infringement is undoubtedly willful under the Copyright Act, 17 USC §

504, since the Defendants were notified on October 31, 2012 by telephone,

letters, certified letters and electronic communications, and in disregard of the

Plaintiff’s rights continue the illegal exploitation of the Work.

28. The lack of licenses, the willful nonpayment of royalties for years, and

Defendants’ failure to provide information about the production and

distribution of CDs, DVDs and public performances in order to be able to enter

into a license agreement, clearly reveals defendants’ intention to infringe

plaintiff’s copyrights willfully and continuously.

29. By reason of the foregoing, the Plaintiff has been damaged by each Defendant in

an amount to be determined at trial, but believed to be in excess of $7,000,000.

VI. SECOND CAUSE OF ACTION INFRINGEMENT TO THE MORAL RIGHTS

(31 LPRA § 1401)

30. Plaintiff repeats and re-alleges the allegations in paragraphs 1 through 29 of this

complaint.

31. Article 2(b) of “The Moral Rights Act of Puerto Rico” sets forth that the author of

a work has the exclusive right, among others, to use and benefit from it

according to the laws.


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32. In addition, Article 10 of “The Moral Rights Act of Puerto Rico” states that the

violation of the moral rights gives the right to request an injunction and

damages.

33. In the present case, Defendants willfully and knowingly mutilated the Work

without Plaintiff’s consent and despite of the Plaintiff’s direct opposition.

34. The Defendants, even though they knew that the Plaintiff will not approve any

mutilation of the Work, as expressed to the Defendants in many instances

before, and that the Defendants did not obtain any authorization to do so,

mutilated the Work on multiple occasions.

35. Defendants failed to attribute the Work to Plaintiff and have continuously

benefitted from the Work without ever notifying the composer.

36. Defendants’ actions were clearly intentional and caused damages to the Plaintiff.

The damages will be determined at trial but they are estimated in an amount no

less than $3,000,000.

VI. THIRD CAUSE OF ACTION INJUNCTIVE RELIEF

37. The Plaintiff repeats and re-alleges the allegations in paragraphs 1 through 36 of

this complaint.

38. Under Section 502 of the Copyright Act, 17 U.S.C. § 502, a Copyright owner is

entitled to Injunctive relief.

39. By reason of the foregoing and ongoing acts of copyright infringement and

intellectual property rights violations, the Plaintiff has been irreparably injured.


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40. Plaintiff has no adequate remedy at law and is entitled to injunctive relief.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff demands judgment against the Defendants, as

follows:

1. That the court enters judgment in favor of the Plaintiff on all the claims for

relief set forth herein.

2. That the Defendants and/or any of their representatives, agents or

partners, in active concert, privy or in participation with them, be enjoined from

directly or indirectly infringing the Plaintiff’s copyrights in the Work or continue to

market, offer, sell, dispose of, lease, transfer, display, advertise, reproduce, develop or

manufacture any works derived or copied from the Work or to participate or assist in

any such activity.

3. That all gains, profits and advantages, including the profits made directly

and indirectly by the exploitation of the Work, derived by the Defendants from their

acts of infringement and other violations of law be deemed to be in constructive trust

for the benefit of the Plaintiff.

4. That the Plaintiff be awarded punitive and exemplary damages against

the Defendants.

5. Pursuant to Section 504 of the Copyright Act, Defendants, jointly and

individually be required to pay Plaintiff either (i) actual damages sustained by plaintiff

as a result of Defendants’ copyright infringement as well as any and all profits, gains,

and benefits attributable to defendants’ infringement or (ii) that judgment be entered


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against Defendants for statutory damages of not less than One Hundred And Fifty

Thousand Dollars ($150,000) for each infringement of copyright and attorney fees.

6. That Defendants be ordered to file with the Court and notify Plaintiff,

within 30 days after this Court has issued an order as requested, a report in writing and

under oath setting forth in detail the total production number of all phonorecords and

video recordings manufactured and sold since 2004 containing the composition in

controversy.



under oath setting forth in detail the total number of all phonorecords and video

recordings manufactured and held in inventory since 2004 containing the composition

in controversy.



under oath setting forth in detail the total number of electronic downloads marketed

and sold by the corresponding commercial servers since 2004 containing the

composition in controversy.



under oath setting forth in detail all the income earned through the performance of

“Solo Quédate En Silencio” since 2004.


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10. That the Court grants such order, further and different relief as the Court

deems proper under the circumstances.

JURY DEMAND

The Plaintiff requests a trial by jury.

Respectfully submitted,

February 1, 2013 Hoglund & Pamias, P.S.C

256 Eleanor Roosevelt Street San Juan, Puerto Rico 00918 Telephone: 787-772-9200 Facsimile: 787-772-9533

S/Samuel Pamias-Portalatín By: Samuel Pamias-Portalatín

USDC NO. 220309 [email protected]

S/Aileen Vázquez-Jiménez By: Aileen Vázquez-Jiménez

USDC No. 227809 [email protected] Law Office of Angel Caro (Of Counsel) R-11, 20th St., Ciudad Universitaria Trujillo Alto, P.R. 00976 Telephone: 787-761-0494

Facsimile: 787-761-0494

S/Ángel N. Caro By: Ángel N. Caro

USDC NO. 215710 [email protected]

Attorneys for Plaintiff


Negron v Universal

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