JS 44C/SDNY

REV. 7/2012

.//^ ^'Aw/Oft/CIVIL COVER SHJEETiH|E1

iitrB refhpltca

PLAINTIFFS

TUFAMERICA, INC.

The JS-44 civil cover sheet and the information contained herein neitlw replfce^r supplSrieiitWe filing $|dllrvicepleadings or other papers as required by law, except as provided l^wcal rulefcpf court*TTiis TOrm, app%^H by tfi^Judicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose'ofinitiating the civil docket sheet.

DEFENDANTS

VIVENDI SA, UNIVERSAL MUSIC GROUP, INC., UNIVERSAL MUSICGROUP INTERNATIONAL LTD., UNIVERSAL MUSIC LLC, UNIVERSALSIGMAUAPANV UNIVERSAL MUSIC PLC. RUSSIA

ATTORNEYS (FIRM NAME,ADDRESS, AND TELEPHONE NUMBER

Kelly D. Talcott, Law Offices of Kelly D. Talcott, PO Box 43, Sea Cliff, NY11579,516.515.1545

ATTORNEYS (IF KNOWN)

CAUSE OFACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)(DO NOTCITEJURISDICTIONAL STATUTESUNLESSDIVERSITY)

17 USC 501 et. seq.

Hasthis ora similar case beenpreviously filed in SDNY at anytime? No [x] Yes |~J JudgePreviously Assigned

If yes, was this case Vol. [~j Invol. • Dismissed. No • Yes • If yes, give date &Case No.

IS THIS AN INTERNATIONAL ARBITRATION CASE? No [jjjj| Yes •(PLACE AN[x] IN ONEBOXONLY)

TORTS

NATURE OF SUIT

ACTIONS UNDER STATUTES

CONTRACT PERSONAL INJURY PERSONAL INJURY FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

[ ] 110 INSURANCE [ ]310 AIRPLANE [ ]362 PERSONAL INJURY - []610 AGRICULTURE [ ] 422 APPEAL [ ]400 STATE[ ]120 MARINE [ ]315 AIRPLANE PRODUCT MED MALPRACTICE [ ]620 OTHER FOOD & 28 USC 158 REAPPORTIONMENTI ] 130 MILLER ACT LIABILITY [ ]365 PERSONAL INJURY DRUG [ ]423 WITHDRAWAL [ 1410 ANTITRUST[ ]140 NEGOTIABLE [ ]320 ASSAULT, LIBEL & PRODUCT LIABILITY [ 1625 DRUG RELATED 28 USC 157 I 1430 BANKS 4 BANKING

INSTRUMENT SLANDER [ ] 368 ASBESTOS PERSONAL SEIZURE OF [ J450 COMMERCE[ ] 150 RECOVERY OF [ ]330 FEDERAL INJURY PRODUCT PROPERTY [ ]460 DEPORTATION

OVERPAYMENT & EMPLOYERS' LIABILITY 21 USC 881 PROPERTY RIGHTS [ ]470 RACKETEER INFLUENFORCEMENT LIABILITY 1 ]630 LIQUOR LAWS ENCED & CORRUPTOF JUDGMENT [ ]340 MARINE PERSONAL PROPERTY [ ]640 RR & TRUCK M820 COPYRIGHTS ORGANIZATION ACT

[J 151 MEDICARE ACT [ ]345 MARINE PRODUCT [ ]650 AIRLINE REGS [ ] 830 PATENT (RICO)| ] 152 RECOVERY OF LIABILITY []370 OTHER FRAUD [ J660 OCCUPATIONAL [ ] 840 TRADEMARK [ ] 480 CONSUMER CREDIT

DEFAULTED [ ]350 MOTOR VEHICLE [ ]371 TRUTH IN LENDING SAFETY/HEALTH [ ]490 CABLE/SATELLITE TVSTUDENT LOANS [ ]355 MOTOR VEHICLE [ ]380 OTHER PERSONAL [ ]690 OTHER [ ]810 SELECTIVE SERVICE(EXCL VETERANS) PRODUCT LIABILITY PROPERTY DAMAGE SOCIAL SECURITY [ ]850 SECURITIES/

[ ] 153 RECOVERY OF [ 1360 OTHER PERSONAL [ ]385 PROPERTY DAMAGE COMMODITIES/OVERPAYMENT INJURY PRODUCT LIABILITY LABOR ( ]861 HIA(1395ff) EXCHANGEOF VETERAN'S [ ]862 BLACK LUNG (923) [ ]875 CUSTOMERBENEFITS M710 FAIR LABOR [ ] 863 DIWC/DIWW (405(g)) CHALLENGE

I ] 160 STOCKHOLDERS STANDARDS ACT [ ] 864 SSID TITLE XVI 12 USC 3410SUITS [ ]720 LABOR/MGMT [ ]865 RSI (405(g)) [ ]890 OTHER STATUTORYOTHER PRISONER PETITIONS RELATIONS ACTIONSCONTRACT [ ]730 LABOR/MGMT [ ] 891 AGRICULTURAL ACTSCONTRACT [ 1510 MOTIONS TO REPORTING & FEDERAL TAX SUITS [ ]892 ECONOMICPRODUCT ACTIONS UNDER STATUTES VACATE SENTENCE DISCLOSURE ACT STABILIZATION ACTLIABILITY 20 USC 2255 [J740 RAILWAY LABOR ACT []870 TAXES (U.S. Plaintiff or ( ]893 ENVIRONMENTAL

I ] 1S6 l-KANCHISE CIVIL RIGHTS ( ]530 HABEAS CORPUS []790 OTHER LABOR Defendant) MATTERS[ J535 DEATH PENALTY LITIGATION [ ] 871 IRS-THIRD PARTY [ ]894 ENERGY

[ ]441 VOTING []540 MANDAMUS & OTHER M791 EMPL RET INC 26 USC 7609 ALLOCATION ACT[ ]442 EMPLOYMENT SECURITY ACT [ ]895 FREEDOM OF

REAL PROPERTY [ ]443 HOUSING/ INFORMATION ACTACCOMMODATIONS IMMIGRATION [ ]900 APPEAL OF FEE

[ ]210 LAND [ ]444 WELFARE PRISONER CIVIL RIGHTS DETERMINATIONCONDEMNATION [ J445 AMERICANS WITH [ ]462 NATURALIZATION UNDER EQUAL

I ]220 FORECLOSURE DISABILITIES - [ ]550 CIVIL RIGHTS APPLICATION ACCESS TO JUSTICE[ ]230 RENT LEASE 8,

EJECTMENT [ ]446EMPLOYMENT

AMERICANS WITH[ ]555 PRISON CONDITION 11463 HABEAS CORPUS-

ALIEN DETAINEE[ ]950 CONSTITUTIONALITY

OF STATE STATUTES| ]240 TORTS TO LAND DISABILITIES -OTHER [ 1465 OTHER IMMIGRATION|]245 TORT PRODUCT

LIABILITY[ ]440 OTHER CIVIL RIGHTS

(Non-Prisoner)ACTIONS

[ ]290 ALL OTHER

REAL PROPERTY

Check if demanded in complaint:

CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ OTHER

Check YESonlyif demanded in complaintJURY DEMAND: DYES • NO

DO YOU CLAIMTHIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?IF SO, STATE:

JUDGE DOCKET NUMBER

NOTE: Please submitat the time of filing an explanation of whycases are deemed related.

(PLACE AN x IN ONEBOX ONLY)

_3 1 Original fj 2 Removed fromProceeding State Court

I I 3 Remandedfrom

• a. all parties represented AppellateL-' Court

I I b. Atleastoneparty is pro se.

ORIGIN

I | 4 Reinstated or | | 5 Transferred from L_ 6 MultidistrictReopened (Specify District) Litigation

I I 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment

(PLACE AN x IN ONE BOX ONLY) BASIS OF JURISDICTION• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT _ 3 FEDERAL QUESTION Q4 DIVERSITY

(U.S. NOT A PARTY)

IF DIVERSITY, INDICATECITIZENSHIP BELOW.

(28 USC 1332,1441)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one boxfor Plaintiff and one boxfor Defendant)

CITIZEN OF THIS STATEPTF DEF

in in CITIZEN OR SUBJECT OF AFOREIGN COUNTRY

PTF DEF

[ ]3 [ ] 3PTF DEF

INCORPORATED __ PRINCIPAL PLACE []5 [)5OF BUSINESS IN ANOTHER STATE

CITIZEN OF ANOTHERSTATE [ ] 2 [ ]2 INCORPORATED or PRINCIPAL PLACE [ ]4 [ ]4OF BUSINESS IN THIS STATE

FOREIGN NATION

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

TufAmerica, Inc., 246 W. 38th St., New York, NY 10018 (New York County)

16

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

Vivendi, SA, 800 Third Ave., NY, NY 10022 (NY); Universal Music Group, Inc. 2220 Colorado Avenue,Santa Monica, CA 90404; Universal Music Group Int'l Ltd, 364-366 Kensington High St, London, W148NS, UK; Universal Music LLC and Universal Sigma (Japan), each at 107-8583 Tokyo, Minato-ku,Akasaka 8-chome, No. 5 No. 30, Japan; Universal Music Pic, Russia, Kutuzovskiy prospect, 36, bid. 23,office 418, 121170 Moscow, Russia

DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION ISHEREBY MADE THAT, AT THIS TIME, IHAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TOASCERTAIN THE

RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS [X] MANHATTAN(DO NOT checkeither box ifthis a PRISONER PETITION/PRISONER CIVIL RIGHTS COMPLAINT.)

RECEIPT #

rTURCOfA^SJGNAftrW

Magistrate Judge is to be designated by the Clerk of the Court.

MagistrateJudge

ADMITTED TO PRACTICE IN THIS DISTRICT[ ] NOM YES (DATE ADMITTED Mo^ 0fA Yr. 89 )Attogiey Bar Codefi^KttT?

=»! * r <i. , , a V"

is so Designated.

Ruby J. Krajick, Clerk of Court by . Deputy Clerk, DATED.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

TUFAMERICA, INC.,

Plaintiff,v.

-It Indl

COMPLAINT

VIVENDI SA, UNIVERSAL MUSICGROUP, INC., UNIVERSAL MUSIC

LLC, UNIVERSAL MUSIC GROUP

INTERNATIONAL LIMITED,UNIVERSAL MUSIC JAPAN,UNIVERSAL SIGMA (JAPAN),UNIVERSAL MUSIC PLC, RUSSIA

Defendants.. x <? , #

PlaintittTutAmerica, Inc. ("TufAmerica"), by and through its undersigned counsel^ S- <r>-<: ro cs

•P.alleges as follows:

PARTIES

1 Plaintiff TufAmerica, Inc. is a New York corporation with a place of business

at 10 West 371'1 Street, Suite 601, New York, New York.

2. Upon information and belief, defendant Vivendi SA ("Vivendi") is a company

organized under the laws of France with a New York office at 800 Third Avenue, New

York, NY 10022.

3 Upon information and belief, defendant Universal Music Group, Inc.

("UMG") is a Delaware corporation authorized to do business in New York and having a

business address at 2220 Colorado Avenue, Santa Monica, CA90404. Upon information

and belief, defendant Universal Music Group, Inc. is owned or controlled by defendant

Vivendi SA.

jtr*

4. Upon information and belief, defendant Universal Music Group International

Limited ("UMG International") is a United Kingdom limited company and having a

business address at 364-366 Kensington High Street, London, W14 8NS, United

Kingdom. Upon information and belief, Universal UK is directly or indirectly owned

and/or controlled by one or more of defendants Vivendi and/or UMG.

5. Upon information and belief, Universal Music LLC ("Universal Japan") is a

Japanese limited liability company having a business address at 107-8583 Tokyo,

Minato-ku, Akasaka 8-chome, No. 5 No. 30, Japan. Upon information and belief,

defendant Universal Japan is directly or indirectly owned and/or controlled by one or

more of defendants Vivendi, UMG, or UMG International.

6. Upon information and belief, defendant Universal Sigma (Japan) ("Universal

Sigma") is an unincorporated music label having a business address at 107-8583 Tokyo,

Minato-ku, Akasaka 8-chome, No. 5 No. 30, Japan. Upon information and belief,

Universal Sigman (Japan) is directly or indirectly owned and/or controlled by one or

more of defendants Vivendi, UMG, UMGInternational, or Universal Japan.

7. Upon information and belief, Universal Music Pic, Russia ("Universal

Russia") is an entity organized under the laws of the Russian Federation, having a

business address at Kutuzovskiy prospect, 36, bid. 23, office 418, 121170 Moscow,

Russia. Upon information and belief, Universal Music Pic. Russia is owned and/or

controlled, directly or indirectly, by one or more of defendants Vivendi, UMG, or UMG

International.

JURISDICTION AND VENUE

8. This Complaint seeks relief arisingunder the Copyright Laws of the United

States, 17 USC. §101, et seq., andthis Court hasjurisdiction pursuant to 28 U.S.C.

§1338(a). Jurisdiction over the related state law claims is appropriate pursuant to 28

U.S.C. §1338 and 1367. This actions seeks statutory damages pursuant to 17 U.S.C.

§504, and compensatory and punitive damages under New York law.

9. Venue in this District is proper pursuant to 28 U.S.C. §1391 and §1400 in that

Defendants do business and/or are present within the Southern District of New York and

are subject to personal jurisdiction there. Defendants have directed their activities and

marketing of musical recordings to New York residents, and New York residents were

able to download infringing musical recordings by way of a website controlled or

authorized by Defendants. Defendants thus do continuous and systematic business in

New York, upon information and belief have entered into transactions directly related to

the subject matter of this lawsuit, and are present in New York for purposes of

establishing this Court's jurisdiction over them.

FACTS

10. TufAmerica is the owner of the Tuff City Music Group, which was founded in

1981 as a rap and hip-hop label. Since then, TufAmerica has moved into other musical

genres, including blues, soul, funk, and R&B, acquiring the rights to thousands of

musical recordings and compositions. This lawsuit relates to a series of issues in which

one or more of the defendants have infringed rights held by TufAmerica to the musical

recordings and compositions as set forth more fully below:

BLACK MERDA

11 TufAmerica, through agreements with members and the manager of the

musical recording group Black Merda, controls the rights to a number of Black Merda

recordings and compositions. By way of agreements executed in 1996, TufAmerica

acquired ownership rights in and to the compositions and recordings released by the

musical group Black Merda on its albums "Black Merda" and "Long Burn the Fire." In

2005, TufAmerica, on its Funky Delicacies label, released an album that compiled the

songs from these two albums on a single album titled "The Folks from Mother's Mixer."

12. TufAmerica recorded its interest in its agreement with Marvin Figgins, one of

the members of Black Merda, with the United States Copyright Office on June 12, 2002,

at V3485D119.

13. Upon information and belief, defendants claim to have rights in and to the

recordings from the Black Merda album "Black Merda" in derogation of TufAmerica's

rights thereto.

14. Upon information and belief, one or more of defendants Vivendi, UMG,

UMG International, Universal Japan, and/or Universal Sigma have, without authorization

from TufAmerica, purported to issue a license to the Japanese music group Teriyaki Boyz

to use a sample of the Black Merda recording and composition "Cynthy Ruth" in the

Teriyaki Boyz recording "Teriya-Kings."

15. Upon information and belief, one or more of defendants Vivendi, UMG,

UMG International, and/or Universal Pic. Russia's have, without authorization from

TufAmerica, purported to issue a license to Lilith Records in Russia for the entire "Black

Merda" album.

16. TufAmerica has repeatedly asked defendant UMG to provide written proof

that it or any related entity has the rights to issue the licenses set forth in paragraphs 18

and 19 above. Neither UMG nor any other defendant has delivered the requisite proofof

its rights to do so.

IMPEACH THE PRESIDENT

17. TufAmerica is the owner of rights in and to the recording "Impeach the

President" and registered those rights with the United States Copyright Office in 1991

(SR136339).

18. As a consequence of a series of agreements relating to "Impeach the

President," TufAmerica has acquired 3.15% of the copyright in and to the Mary J. Blige

recording "Real Love.

19. Upon information and belief, the Frank Ocean recording "Super Rich Kids"

incorporates a sample of "Real Love." "Super Rich Kids" was released on the Def Jam

label, which upon information and belief is owned and controlled by defendants Vivendi

and UMG. However, defendants have failed and refused to secure a license from

TufAmerica for its share of the rights to use "Real Love" in "Super Rich Kids."

TONY CLARKE

20. By way of an agreement with his heirs, TufAmerica is the exclusive licensee

and administrator of all rights in and to a series of musical compositions and sound

recordings authored and created by the artist Tony Clarke and controlled by his heirs,

including without limitation the song "Pushover."

21. "Pushover" has appeared on one or more albums issued on one or more labels

owned or controlled by defendants Vivendi or UMG.

22. Upon information and belief, one or more of defendants Vivendi or UMG

have failed to pay the mechanical copyright license royalties to Tony Clarke or his heirs

(or to TufAmerica as exclusive administrator) for the distribution and sale of "Pushover"

on various albums and in various formats.

23. Upon information and belief, one or both of defendants Vivendi or UMG have

failed to pay artist royalties due to Tony Clarke or his heirs (or to TufAmerica as

exclusive administrator) as a result of the distribution and sale of "Pushover" on various

albums and in various formats.

(Copyright Infringement - Black Merda - Teriya-Kings - Vivendi, UMG, UMGInternational, Universal Japan, Universal Sigma)

24. TufAmerica repeats and realleges each and every allegation contained in

paragraphs 1 through 23 as though set forth in full herein.

25. By issuing a license to the Teriyaki Boyz that purported to give them rights to

use any part of the Black Merda recording and composition "Cynthy Ruth" in the

recording "Teriya-Kings," one or more of defendants Vivendi, UMG, UMG

International, Universal Japan, and/or Universal Sigma infringed on TufAmerica's

exclusive rights in and to the "CynthyRuth" recording and composition.

26. As a direct and proximate result of Defendants' conduct, TufAmerica is

entitled to compensatory or statutory and punitive damages in an amount to be proven at

trial.

27 TufAmerica is also entitled to an accounting from defendants Vivendi, UMG,

UMG International, Universal Japan, and/or Universal Sigma to determine the revenues

generated as a result of the unauthorized sale and licensing of "Cynthy Ruth."

(Copyright Infringement - Black Merda - Lilith Records - Vivendi, UMG,UMG International, Univeral Pic. Russia)

28. TufAmerica repeats and realleges each and every allegation contained in

paragraphs 1 through 27 as though set forth in full herein.

29. By issuing a license to Lilith Records that purported to give them rights to

use any part of any Black Merda recording and composition, one or more of defendants

Vivendi. UMG, UMG International, and/or Universal Pic. Russia infringed on

TufAmerica's exclusive rights in and to the Black Merda recordings and compositions.

30. As a direct and proximate result of Defendants' conduct, TufAmerica is

entitled to compensatory or statutory and punitive damages in an amount to be proven at

trial.

31. TufAmerica is also entitled to an accounting from defendants Vivendi, UMG,

UMG International, Universal Pic. Russia to determine the revenues generated as a result

of the unauthorized sale and licensing of Black Merda recordings and compositions.

(Copyright Infringement - Impeach the President - Super Rich Kids - Vivendi,UMG)

32. TufAmerica repeats and realleges each and every allegation contained in

paragraphs 1 through 31 as though set forth in full herein.

33. By failing to secure a license from TufAmerica for the use of "Real Love" in

"Super Rich Kids," Vivendi and/or UMG have infringed on TufAmerica's rights in and

to "Real Love."

34 As a direct and proximate result of Defendants' conduct, TufAmerica is

entitled to compensatory or statutory and punitive damages in an amount to be proven at

trial.

35. TufAmerica is also entitled to an accounting from defendants Vivendi and

UMG i.c determine the revenues generated as a result of the sale and licensing of "Super

Rich Kids."

(Copyright Infringement - Pushover -Vivendi, UMG)

36. TufAmerica repeats and realleges each and every allegation contained in

paragraphs 1 through 35 as though set forth in full herein.

37. By failing to secure a license from TufAmerica for the use of "Pushover" in

one or more albums released through various affiliated labels, defendants Vivendi and/or

UMG have infringed on TufAmerica's rights in and to "Pushover."

38. As a direct and proximate result of Defendants' conduct, TufAmerica is

entitled to compensatory or statutoryand punitive damages in an amount to be proven at

trial.

39. I'ufAmenca is also entitled to an accounting from defendants Vivendi and

UMG to determine the revenues generated as a result of the sale and licensing of

"Pushover."

WHEREFORE, TufAmerica prays for judgment against Defendants as follows:

1. For an accounting, the imposition of a constructive trust, restitution toTufAmericaof Defendants' unlawful proceeds, and damages according toproof.

2. For an order enjoining defendants, as appropriate, from any furtherdistribution or exploitation of "Cynthy Ruth," "Teriya-Kings," any BlackMerda recording, "Super Rich Kids," and "Pushover," in any audio orvideo format.

3. For punitive and exemplary damages in an amount as may be awarded attrial.

4. For prejudgment interest according to law.

5. For TufAmerica's costs incurred in this action including its reasonableattorneys' fees.

6. For such other and further relief as the Court may deemjust and proper.

Respectfully submitted,

Dated: Sea Cliff, New YorkFebruary 5, 2014

By:

Kelly D. TalcottThe Law Offices of Kelly D. TalcottP.O. Box 43, 34 Grove Street

Sea Cliff, NY 11579-0043v.516.515.1545

f.516.871.0682

Attorney for Plaintiff

General Information

Court United States District Court for the Southern District of NewYork

Docket Number 1:14-cv-00789

Status Open

TufAmerica v. Vivendi SA, et al., Docket No. 1:14-cv-00789 (S.D.N.Y. Feb 07, 2014), Court Docket

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