BOBBY KENT flk/a IRA BRANDWEIN, individually, and HOLLBRAND MUSIC PUBLISHERS INC.

, a Florida corporation,

CASE NOT - 1 0 8 1 5 CA 2 1

".""'" -.

.. I

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

Plaintiffs,

v.

AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., a New York corporation,

Defendant.

COMPLAINT

Plaintiffs, BOBBY KENT fIkIa IRA BRANDWEIN ("KENT") and HOLLBRAND

MUSIC PUBLISHERS, INC., a Florida corporation ("HOLLBRAND") (together, the

"Plaintiffs"), sue the AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND

~

PUBLISHERS, INC., a New York corporation ("ASCAP"), alleging the following:

THE PARTIES

1. Plaintiff, Kent, is a Florida resident, over the age of 18, who, engages in business in

Miami-Dade and Broward Counties as a music composer and performer. Kent was known as

"Ira Brandwein" before legally changing his name to "Bobby Kent".

2. Plaintiff, Hollbrand, is a Florida corporation that has engaged in business in Miami-Dade

and Broward .. Counties as a music publisher, and which holds the copyrights to certain

compositions authored by Kent.

EHRENSTEIN CHARBONNEAU CALDERIN

501 Brickell Key Drive· Suite 300· Miami, FL 33131· T. 305.722,2002· F. 305.722.2001 . www.ecclegal.com

Defendant, ASCAP is a New York corporation doing business as a performing rights

society, representing authors like Kent and publishers like Hollbrand, ostensibly to collect

licensing fees derived from the public performances of the compositions of its contracting

members, and later disbursing the contractually agreed-to share of the collected funds to its

contracting members.

JURISDICTION & VENUE

4. This is a lawsuit for damages which exceeds the sum of $15,000.00; therefore, this court

has jurisdiction over the action.

5. Venue is appropriate in this Court because all parties hereto actively engage in business

CONDITIONS PRECEDENT

in Miami-Dade County; specifically, ASCAP maintains an office in Miami-Dade County,

regularly conducts business in Miami-Dade County by both representing composers and

publishers in Miami-Dade County, and regularly collects licensing fees from parties

incorporated, formed, or doing business in Miami-Dade County.

6. All conditions precedent to bringing this action have occurred, been performed, have

been waived or excused, would be futile and are therefore no longer required, or are no longer

applicable.

COMMON ALLEGATIONS TO ALL COUNTS

7. In 1978, Kent was performing as the musical director for the San Diego Chargers football

team. His job was to create and perform music at the stadium to hype, excite or motivate the

fans at San Diego Chargers games. During this time, together with Bernardo M. Hollman, Kent

created and authored an original composition entitled "Stadium Doo Dads" (hereinafter called

"Kent's Composition").

2

EHRENSTEIN CHARBONNEAU CALDERIN

501 Brickell Key Drive· Suite 300 . Miami, Fl33131 . T. 305.722.2002· F. 305.722.2001 . www.ecclegal.com

Later in 1978, Kent and Hollbrand entered into a standard agreement with ASCAP in

which ASCAP agreed to collect all performing rights fees from users of music within its catalogs

for all songs written by Kent, including Kent's Composition. A copy of an exemplar of the

contract Kent entered into with ASCAP is attached as Exhibit "A" (hereinafter referred to as the

"ASCAP Performance Agreement");'

9. Starting in 1980, Kent regularly performed Stadium Doo Dads during the San Diego

Chargers home football games,

10. Kent and Hollbrand registered a claim of copyright with United States Copyright Office

on September 14, 1980, and on January 5, 1981 the United States Copyright office issued a

Certificate of Registration for "Stadium Doo Dads", which was assigned registration number

PAOOOOI00774. A true and correct printout from the United States Copyright Office website

reflecting the registration number, ownership of the copyright, and date of creation of the

aforementioned copyright is attached hereto as Exhibit "B".

11. Pursuant to the terms of the ASCAP Performance Agreement, ASCAP implicitly agreed

to undertake its best efforts to collect all performance royalties from the users of songs written by Kent and published by Hollbrand, including, but not limited to, Kent's Composition, and to pay a

portion of those fees to the Plaintiffs in the form of a royalty.

12. From 1980 until 1984, Kent, working as a musical director for the San Diego Chargers,

provided a "set list" to the television stations that covered the Chargers broadcasts documenting

the public performances of Kent's Composition at the Chargers' games.

13. For a few years after 1984, Kent's former collaborator Bernardo M. Hollman

1 Kent and Hollman do not currently have a copy of the original agreement entered into by ASCAP and the Plaintiffs.

3

EHRENSTEIN CHARBONNEAU CALDERfl\J

501 Brickell Key Drive· Suite 300· Miami, Fl33131 . T. 305.722.2002 . F. 305.722.2001 . www.ecclegal.com

ollman") continued to serve as musical director for the San Diego Chargers. He also provided a set list to the television stations that covered the Chargers broadcasts documenting the public

performances of Kent's Composition at San Diego Chargers games.

14. Based solely upon the performances of Kent's Composition at San Diego Chargers

games, ASCAP paid to Kent a royalty of approximately $10,000-$20,000 per year for Kent and

Hollman's share of public performance royalties.

15. Starting in the mid-to-late 1980s, Kent's Composition became a standard in all stadiums

and arenas in which professional and amateur sports teams 'played. The operative and most

commonly known part of Kent's Composition goes "da da da da da da ... CHARGE!"

16. Since the mid-to-late 1980s, and continuing to the present, Kent's Composition has

become immensely popular at the stadiums and arenas of all professional and amateur sports

teams, many of which regularly and repeatedly play Kent's Composition during each game.

17. Kent's Composition is regularly broadcasted both at the actual stadiums and arenas at

which sporting events take place, and also as part of the radio or television broadcast aired and

distributed by the qroadcast networks licensed to broadcast the sporting events.

18. Upon information and belief, the royalties paid to Kent and Hollman commencing in

1990 and for a few years thereafter only represented the licensing fees paid to ASCAP by the

San Diego Chargers, and not by any of the other sports teams, stadiums, arenas, or other users of

Kent's Composition.

19. Upon information and belief, ASCAP has entered into annual "blanket licenses" with

many third party users who publicly perform Kent's Composition for commercial purposes,

which include Major League Baseball and the 30 professional baseball teams represented

therein, the National Hockey League, and the 30 professional hockey teams represented therein, 4

EHRENSTEIN CHARBONNEAU CALDERfN

501 Brickell Key Drive· Suite 300· Miami, FL 33131· T. 305.722.2002 . F. 305.722.2001 . www.ecclegal.com

5

EHRENSTEIN CHARBONNEAU CALDERIN

501 Brickell Key Drive· Suite 300 . Miami, FL 33131 . T. 305.722.2002 . F. 305.722.2001 . www.ecclegal.com

ational Football League and the 32 professional football teams represented therein, and the

National Basketball Association and the 30 professional basketball teams represented therein.

20. Kent's Composition is also publicly performed at other sports competitions exclusive of

the four major professional sports (baseball, football, basketball, and hockey). Other third party

users entering into blanket licenses to publicly perform Kent's Composition for commercial

purposes include the National Collegiate Athletic Association (the "NCAA"), either individually,

or separately on behalf of all of the colleges, universities, or conferences that comprise the

NCAA and that utilize publicly performed music at their stadiums and arenas, as well as other

organized sports entities such as the National Association for Stock Car Auto Racing

CNASCAR"), the stadiums themselves, arenas, minor league sports teams and other sports

leagues and users currently unknown to Plaintiffs.

21. Unbeknownst to Kent and Hollbrand, ASCAP does not track songs that are publicly

performed in stadiums, which policy ASCAP has intentionally hid from composers such as Kent

and publishers such as Hollbrand.

22. Even thouzy AS CAP has issued blanket licenses for the use of Kent's Composition and

collected millions of dollars for its use, ASCAP has paid little to nothing to Kent or Hollbrand

since 1982.

23. In addition, at no time did ASCAP advise Kent or Hollbrand that it did not track public

performances of its members' compositions, even though ASCAP's competitors, SESAC and

BMI, do track and pay royalties based on such public performances.

, As a result of its failure to track public performances of Kent's Composition (and other

songs written by Kent and published by Hollbrand), ASCAP has failed to capture and collect

significant potential revenues that would have been due to the Plaintiffs and which the Plaintiffs

reasonably expected ASCAP to track and collect on their behalf.

COUNT I:

BREACH OF CONTRACT

Plaintiffs readopt and reallege the allegations contained in paragraph 1 through 24 as if

fully stated herein.

25. This is an action for breach of contract.

,

26. Pursuant to the ASCAP Performance Agreement, ASCAP was obligated to pay the

Plaintiffs their contractual share of the licensing and other usage fees collected by ASCAP from

third party users of all songs written by Kent and published by Hollbrand, including, but not

limited to, Kent's Composition.

27. ASCAP breached the ASCAP Performance Agreement by collecting licensing and other

usage fees from third party users of Kent's Composition, and then failing to pay the Plaintiffs

?

royalties due to them under the ASCAP Performance Agreement.

28. As a result of ASCAP's breach of the ASCAP Performance Agreement, the Plaintiffs

have been and continue to be damaged.

WHEREFORE, Plaintiffs, Kent and Hollbrand, demand a judgment in their favor and

against Defendant, ASCAP, for damages in an amount to be determined at trial based upon the

appropriate percentage of the licensing fees paid by third party users to ASCAP and not

distributed to Kent and Hollbrand, for their reasonable attorney's fees and costs, and for such

further relief as this Court deems just and appropriate.

6

EHRENSTEIN CHARBONNEAU CALDERfN

501 Brickell Key Drive· Suite 300 . Miami, FL 33131· T. 305.722.2002 . F. 305.722.2001 . www.ecclegal.com

COUNT II:

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

Plaintiffs readopt and reallege the allegations contained in paragraph 1 through 24 as if

fully stated herein.

29. This is an action for breach of the implied covenant of good faith and fair dealing

implicitly included in the ASCAP Performance Agreement.

30. The ASCAP Performance Agreement obligated ASCAP, in order to fully perform its

obligations under the ASCAP Performance Agreement, to track public performances of Kent's

Composition, and to pay royalties to the Plaintiffs in an amount equal to their contractual share

of the licensing fees collected by ASCAP.

31. ASCAP violated the implicit covenant of good faith and fair dealing by failing to

undertake reasonable (let alone any) efforts to track public performances of Kent's Composition,

by failing to collect the potential licensing fee and usage revenues that would have been realized

if ASCAP has properly tracked the public performances of Kent's Composition, and by

collecting licensin& and other usage fees from third party users of Kent's Composition and then

,

failing to pay the Plaintiffs their contractual share of these fees.

32. Specifically, ASCAP breached each and every clause In the ASCAP Performance

Agreement relating to its obligation to track public performances of Kent's Composition, and

also breached each and every clause in the ASCAP Performance Agreement relating to its

obligation to pay Kent and Hollbrand for their contractual share of the licensing and other usage

fees collected by ASCAP from the third party users of Kent's Composition .

.

33. Kent reasonably relied on ASCAP's implicit obligation that it would undertake the

purpose of the ASCAP Performance Agreement, tracking public performances of Kent's

7

EHRENSTEIN CHARBONNEAu CALDERfN

501 Brickell Key Drive· 5uite 300 . Miami, FL 33131· T. 305.722.2002· F. 305.722.2001 . www.ecclegal.com

__.....'?~ .... _positi6nrcollectihg royalties from third party licensee users, and distributing a portion of

those royalties to Kent and Hollbrand.

34. As a direct and proximate result of ASCAP's breach of the covenants of good faith and

fair dealing, Kent and Hollbrand have been damaged.

WHEREFORE, Plaintiffs, Kent and Hollbrand, demand a judgment in their favor and

against Defendant, ASCAP, for damages in an amount to be determined at trial based upon the

appropriate. percentage of the licensing fees paid by third party users to ASCAP and not

distributed to Kent and Hollbrand, for their reasonable attorney's fees and costs, and for such

further relief as this Court deems just and appropriate.

COUNT III:

BREACH OF FIDUCIARY DUTY

Plaintiffs readopt and reallege the allegations contained in paragraph 1 through 24 as if

fully stated herein.

35. This is an action for breach of fiduciary duty.

36. Kent and Hollbrand reposed and placed their trust in ASCAP, as their sole representative,

\

with a duty to collect all monies otherwise due to them from the public performance of Kent's

Composition and to distribute to them their contractual share of these proceeds.

37. By entering into the ASCAP Performance Agreement, ASCAP undertook such trust and

assumed a fiduciary duty to Kent and Hollbrand.

38. ASCAP breached the fiduciary obligations it owed to Kent and Hollbrand by failing to

take reasonable efforts to track the public performances of Kent's Composition, and also by

collecting licensing and other usage fees from third party users of Kent's Composition and

failing to pay Kent and Hollbrand their reasonable share of these fees.

8

EHRENSTEIN CHARBONNEAU CALDERfN

501 Brickell Key Drive· Suite 300 . Miami, FL 33131 . T. 305.722.2002· F. 305.722.2001 . www.ecclegal.com

_EREFORE, Plaintiffs, Kent and Hollbrand, demand a judgment in their favor and

against Defendant, ASCAP, for damages in an amount to be determined at trial based upon the

appropriate percentage of the licensing fees paid by third party users to ASCAP and not

distributed to Kent and Hollbrand, for their reasonable attorney's fees and costs, and for such

further relief as this Court deems just and appropriate.

COUNT IV:

CONSTRUCTIVE TRUST

Plaintiffs readopt and reallege the allegations contained in paragraphs 1 through 24 fully

stated herein and further allege:

39. This is an action for constructive trust.

40. By virtue of the ASCAP Performance Agreement, a relationship was created whereby

Kent and Hollbrand appointed and entrusted ASCAP to act as its agent, and relied on ASCAP to

collect on their behalf the licensing and other usage fees paid by third party users of Kent's

Composition.

41. ASCAP collected licensing and other usage fees paid by third party users of Kent's

?

Composition, on behalf of Kent and Hollbrand, and instead of paying to Kent and Hollbrand

their contractual share of these fees, ASCAP instead retained all of them for its sole use and

benefit.

WHEREFORE, Plaintiffs, Kent and Hollbrand, demand a judgment in their favor and

_ against Defendant, ASCAP, for damages in an amount to be determined at trial based upon the

appropriate percentage of the licensing fees paid by third party users to ASCAP and not

distributed to Kent and Hollbrand, for their reasonable attorney's fees and costs, and for such

further relief as this Court deems just and appropriate.

9

EHRENSTEIN CHARBONNEAU CALDERIN

501 Brickell Key Drive· 5uite 300· Miami, Fl33131 . T. 305.722.2002 . F. 305.722.2001 . www.ecclegal.com

COUNT V:

UNJUST ENRICHMENT

Plaintiffs readopt and reallege the allegations contained in paragraphs 1 through 24 fully

stated herein and further allege:

42. This is an action for unjust enrichment.

43. Kent and Hollbrand conferred a benefit upon ASCAP by granting ASCAP the right to act

on their behalf; specifically, the Plaintiffs allowed ASCAP to license Kent's Composition to

third party users, and to collect millions of dollars each year from these third party users in return

for the right to commercially exploit Kent's Composition.

44. ASCAP 'knowingly accepted the benefits bestowed by Kent and Hollbrand, in the form of

the licensing fees paid each year by third party licensees.

45. ASCAP has retained all of the licensing fees and other monetary benefits it has received

from third party licensees who have commercially exploited Kent's Composition, without

remitting any of these proceeds to Kent and Hollbrand.

WHEREFORE, Plaintiffs, Kent and Hollbrand, demand a judgment in their favor and against Defendant! ASCAP, for damages in an amount to be determined at trial based upon the

appropriate percentage of the licensing fees paid by third party users to ASCAP and not

distributed to Kent and Hollbrand, for their reasonable attorney's fees and costs, and for such

.J

further relief as this Court deems just and appropriate.

COUNT VI:

VIOLATION OF SECTION §501.204 OF THE FLORIDA STATUTES, THE FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT

Plaintiffs readopt and reallege the allegations contained in paragraphs 1 through 24 fully

stated herein and further allege:

10

EHRENSTEIN CHARBONNEAU CAlDERfN

501 Brickell Key Drive· Suite 300· Miami, FL 33131· T. 305.722.2002· F. 305.722.2001 . www.ecclegal.com

't11111> is an action for· the violation of Section §501.204 of the Florida Statutes, known as

the Florida Deceptive and Unfair Trade Practices Act.

47. ASCAP has willfully and intentionall~ engaged in a pattern of deceptive and unfair trade

practices by failing to track the public performances of Kent's Composition, and by collecting

licensing fees from third party users of Kent's Composition and then failing to pay Kent and

Hollbrand their share of these fees.

48. ASCAP's deceptive and unconscionable acts violate the Florida Deceptive and Unfair

Trade Practices Act.

49. As a result of ASCAP's violation of the Florida Deceptive and Unfair Trade Practices

Act, Kent and Hollbrand have suffered and continue to suffer damages.

WHEREFORE, Plaintiffs, Kent and Hollbrand, demand a judgment in their favor and

against Defendant, AS CAP , for damages in an amount to be determined at trial based upon the

appropriate percentage of the licensing fees paid by third party users to ASCAP and not

distributed to Kent and Hollbrand, for their reasonable attorney's fees and costs, and for such

further relief as this Court deems just and appropriate.

COUNT VII:

FRAUD IN THE INDUCEMENT

Plaintiffs readopt and reallege the allegations contained in paragraphs 1 through 24 fully

stated herein and further allege:

50. This is an action for fraud in the inducement.

51. ASCAP falsely and fraudulently represented to the Plaintiffs, in order to induce them to

enter into the AS CAP Performance Agreement, that ASCAP tracked the public performances of

their members' compositions-just as their main competitors, BMI and SESAC do.

11

EHRENSTEIN CHARBONNEAU CALDERfN

501 Brickell Key Drive· Suite 300 . Miami, Fl33131 . T. 305.722.2002· F. 305.722.2001· www.ecclegal.com

~~ .• ~_"'t_ SCAP's representation was false, and ASCAP knew or should have known it was false ____ '_"":.J.&.

at-the t-ime it was made to the Plaintiffs, since ASCAP does not trace the public performances of

its members' compositions.

53. ASCAP's misrepresentation was made in an effort to induce the Plaintiffs into entering

into the ASCAP Performance Agreement.

54. Kent and Hollbrand detrimentally relied on ASCAP's misrepresentation and as a result,

have suffered damages and continue to suffer damages.

WHEREFORE, Plaintiffs, Kent and Hollbrand, demand a judgment in their favor and

against Defendant, ASCAP, for damages in an amount to be determined at trial based upon the

appropriate percentage of the licensing fees paid by third party users to AS CAP and not

distributed to Kent and Hollbrand, for their reasonable attorney's fees and costs, and for such

further relief as this Court deems just and appropriate.

JURY TRIAL

Plaintiff demands a Jury Trial of all issues.

Dated: Aprp 5, 2011

,

Respectfully submitted,

EHRENSTEIN CHARBONNEAU CALDERIN Counsel for Plaintiffs

501 Brickell Key Drive, 3rd Floor Miami, Florida 33131

Telephone: (305) 722-2002 Facsimile: (305) 722-2001

~ard C. Wolfe, Esq.

Florida Bar No.: 355607 Christopher Spuches, Esq. Florida Bar No.:42456

12

EHRENSTEIN CHARBONNEAU CALDERfN

501 Brickell Key Drive· Suite 300 . Miami, FL 33131 . T. 305.722.2002 . F. 305.722.2001 . www.ecclegal.com