Van Dyke Complaint Filed

8/12/2019 Van Dyke Complaint Filed

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Peter L. Skolnik, Esq.

CLARK GULDIN,LLC

20 Church StreetMontclair, New Jersey 07042973.707-5346

Attorneys for PlaintiffJason 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 exemplarydamages), 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.,plaintiffsco-ownership rights in numerous sound

recordings and nine jointly-authored musical works and in his partnership rights, property and

assetsunder 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


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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 ofplaintiffs

property rights.

JURISDICTION AND VENUE

2. This action is brought, and subject matter jurisdiction lies within this Court, under 28U.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), and1400(a) because a substantial part of the events or omissions giving rise to Van Dykesclaims

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

issueoccurred 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



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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 oninformation 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 transactedbusiness 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 Cheekwith Defendants Schultz & Fraites9. 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 podcastof a live performance given by Van Dyke, Schultz and Fraites

during July 2009.

B. Defendants Confirmation of a Business Partnership With Van Dyke11. Following Van Dykes acceptance into the band,he communicated with Defendants

Schultz and Fraites regarding the business relationship that would prevail among them. Van



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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 Partnership12. 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 thebands 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 Copyrights13. 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 bandi.e.,to the so-called master recordingsand 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 continuingparticipation with Schultz and



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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 & Songwriting14. 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 itworked 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 prospectivesong to band rehearsalsusually 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 ScotlandVan 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 againconfirmed that Van Dyke should receive an equal share of the songs Scotlandand Gun Song,

and that all recordings would be co-owned by Van Dyke.

18. Besides creating instrumental components and harmonies, Van Dyke created andarranged 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



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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 amongstthemselves 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 thebands 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 bandsactivities and public profile.



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22. Arnold assisted with developing the bandsbiographical materials and creation of aband 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 beyondclubs in the greater New York-New Jersey area. Van Dyke helped Arnold arrange the bands

first East Coast mini-tourfrom Washington, D.C. through Bostonduring 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 & Fraites24. 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) Scotlandb) Gun Songc) Morning Songd) Submarinese) Red Handsf) Classy Girlsg) Flowers In Your Hairh) Darlenei) Life In The City

25. Musicians engaged in creation of joint works under the Copyright Act will oftennegotiate among themselves to arrive at an agreed-upon division of copyright ownershiprather

than equal sharesthen 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



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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 renderedrecorded performances on audio recordings of the following compositions (the Recorded

Performances):

a) Scotlandb) Gun Songc) Red Handsd) Classy Girlse) Morning Song

27. Although Van Dyke did not record the works entitled Darlene,Submarines andFlowers In Your Hair, it was Van Dykes understanding thatas 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 EP28. 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) Scotlandb) Red Handsc) Gun Songd) White Liee) Darlenef) Dont Wanna Gog) Everyone Requires A Plan



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29. Van Dyke co-authored the following Compositions on the First EP:a) Scotlandb) Gun Songc) Red Handsd) Darlene

30. The First EP was primarily marketed and sold by the band at live shows. Theproceeds from the recordings were equally divided amongst Van Dyke, Schultz and Fraites.

H. Departure of Schultz and Fraites to Colorado31. 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 tojoin them because we didnt think youd go.

32. Van Dyke was shocked by Schultz and Fraitess decision to relocate, but wasmollified 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 Dykeobliged 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. Theyreturned 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.



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35. However, in March 2011, Schultz and Fraites returned to the East Coast to performas 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 toColorado, 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 EP37. 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 byVan Dyke with Schultz and Fraites in Fall 2009.

a) Flowers In Your Hairb) Classy Girlsc) Submarinesd) Gun Songe) 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.



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J. Post-2009 Activities of Defendants39. 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 recordsdirectly 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 anysales 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 masterrecordings 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 anysales of thebands 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



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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 CopyrightRegistrations

45. On or about January 14, 2013, two copyright registration forms were filed in theUnited 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 Creation2011 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 activeinvolvement 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 Recordings47. 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.



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48. On or about April 3, 2012 the bands eponymously-titled first full length album, TheLumineers(the First LP) wasreleased 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 digitalInternet 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 AloneRecordsin Canada, to Inertiain Australia and to Decca Recordsand Universal Musicfor 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 Billboards200

chart a weekly listing of the 200 highest-selling albumsand 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-authoredCompositions identified in Paragraph 24 above:

a) Flowers In Your Hairb) Classy Girlsc) Submarinesd) Morning Song

52. Upon information and belief, on or August 20, 2013, the Lumineers released a deluxeedition of the First LP, which is supplemented with additional bonus recordings, including the

work, Darlene a co-authored Composition.



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53. Upon information and belief, the recording Classy Girls B version has beencommercially 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,whichcontains the co-authored Composition Darlene. Dualtone now lists the Winter EP on its

website as Sold Out.

M.Fraudulent Trademark Registration55. 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 bandscheduled to perform at the Lucky Seven nightclub in Jersey City, New Jersey. The club

emcee inadvertently introduced Van Dyke, Schultz and Fraiteswho 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 TheLumineers 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.



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58. Schultz and Fraites have vigorously pursued exploitation of the name and mark TheLumineerson 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 havederived from exploitation of merchandisebearing the mark The Lumineers.

N. False Publicity Materials Disseminated by Defendants60. 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 Reign61. In September 2013, the co-authored Composition entitled Scotlandwhich had

been included on the bands First EPwas employed as the theme song of a pilot television

show entitled Reignbroadcast by defendant CW on its television network.

62. Upon information and belief, Schultz and Fraites developed a business relationshipwith 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 HoHey in the season finale of CW'sprogram 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 runon the CW network. Although Scotlandwas falsely publicized as a musical work created

http://en.wikipedia.org/wiki/Hart_of_Dixiehttp://en.wikipedia.org/wiki/Hart_of_Dixie


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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 theComposition 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 Rights66. 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 Dykewas merely

informed the song Scotland was being consideredfor apilot, 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 bythe

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 deliveredto 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 workScotlandwas 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.



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68. Although Van Dyke had not agreed to any reduction in the full one-third interest inCompositions 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-makingprocess with CW.

69. Schultz and Fraites also failed to include Van Dykes name in their registration ofScotland 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 Songand 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 creditsstated Scotlandwas 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 thescreen 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.



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72. Upon information and belief, after CW learned of Van Dykes claim, it changed thecredit 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 AssetsTo Van Dyke

73. When Van Dykes several grievances and claims against Schultz and Fraites werecommunicated 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 73as 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 andDefendants 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.



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SECOND COUNT

(Accounting of Co-Ownership Income)

80. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 79above as if set forth herein at length.

81. Upon information and belief, Defendants Schultz and Fraites have received moniesfrom 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 moniesreceived 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)


85. Upon information and belief, Defendants Schultz and Fraites have received moniesfrom 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 moniesreceived by Defendants Schultz and Fraites from the exploitation of Van Dyke s 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)




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89. Schultz and Fraites have wrongfully converted assets of the partnership entered intoby 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 andproperty, to punitive damages, and to the creation of a constructive trust to hold the assets.

FIFTH COUNT

(Misappropriation of Partnership Assets)


92. Schultz and Fraites have wrongfully misappropriated assets and property of thepartnership 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 Dykesshare of partnership assets and property in derogation

Van Dykes rights as a partnerand 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 andproperty, to punitive damages, and to the creation of a constructive trust to hold the assets.

SIXTH COUNT

(Breach of Fiduciary Duty)


95. By their conduct set forth above, Schultz and Fraites have breached the duty of loyaltythey owe to Van Dyke as a partner in the partnership.



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96. Van Dyke is entitled to damages proximately caused by Schultz and Fraitessbreaches of duty.

SEVENTH COUNT

(Breach of Express Contract)


98. Schultz and Fraites made contractual promises to Van Dyke concerning the formationand 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 contractualpromises.

100. Van Dyke is entitled to damages proximately caused by Schultz and Fraitessbreaches of contract, and to specific performance of the contract.

EIGHTH COUNT

(Breach of Implied Contract)


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 reasonableexpectation 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.



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104. Van Dyke has received no compensation for the services he performed under hisimplied contract with Schultz and Fraites.

105. Van Dyke is entitled to restitution for the value of the services he performed.NINTH COUNT

(Promissory Estoppel)


107. Schultz and Fraites made clear and definite promises to Van Dyke with a reasonableexpectation that Van Dyke would rely on those promises.

108. Van Dyke reasonably relied on the promises made to him by Schultz and Fraites tohis substantial detriment.

109. Van Dyke is entitled to damages proximately caused by breaches of promises bySchultz and Fraites.

TENTH COUNT

(Unjust Enrichment)


111. Van Dyke conferred significant benefits to Schultz and Fraites in connection withinter aliamanagement 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 performedand the benefits he conferred on Schultz and Fraites.



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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 toaccount 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 forPlaintiffs share of partnership assets and property, punitive damages, and creation of

a constructive trust over the partnerships propertyand assets;

(d) On the Sixth Count, an award of damages proximately caused byDefendants breaches of fiduciary duty;

(e) On the Seventh Count, an award of damages proximately causedby Defendants breaches of contract, and an order directing specific performanceof the

contract;

(f) On the Eighth Count, restitution for the services Plaintiffperformed;

(g) On the Ninth Count, an award of damages proximately causedby Defendants breaches of promises;

(h) On the Tenth Count, an award in quantum meruit for the servicesPlaintiff performed and the benefits he conferred on Defendants;

(i) An award to Plaintiff of the costs and disbursementsincurred in thisaction, including reasonable attorneys' fees; and

(j) Such other and further relief as the Court deems just and proper.



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Dated: May 22, 2014 CLARK GULDIN, LLC

By: _/s/ Peter L. Skolnik________

Peter L. Skolnik (PS 4876)Of Counsel20 Church Street, Suite 15Montclair, New Jersey 07042(973) 707-5346Attorneys 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. SkolnikPeter L. Skolnik

DATED: May 22, 2014


Van Dyke Complaint Filed

Documents

Transcript of Van Dyke Complaint Filed