"Cassius" Love vs. "Sonny" Wilson 2005: lawsuit text

Courtesy of DJ M from the Smiley Smile board:




UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

MIKE LOVE, Plaintiff,vs.THE MAIL ON SUNDAY; ASSOCIATED NEWSPAPERS LTD.; SANCTUARY RECORDS GROUP, LTD., SANCTUARY RECORDS GROUP NY; SANCTUARY MUSIC MANAGEMENT, INC.; SANCTUARY MUSIC PRODUCTIONS, INC.; BIGTIME.TV; BRIAN WILSON; JEAN SIEVERS; THE LIPPIN GROUP, INC; SOOP LLC; DAVID LEAF; and DOES 1 through 100. Defendants Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR THE FOLLOWING CAUSES OF ACTION:Violation of Statutory and Common Law Rights of Publicity; Breach of Covenant of Good Faith and Fair Dealing; Action for Indemnity Under Written Indemnity Agreement; Declaratory Relief; Breach of Fiduciary Duty; Copyright Infringement for Unlawful Reproduction, Unlawful Preparation of Derivative Work, and Unlawful Distribution; Federal Trademark Infringement; Federal Unfair Competition – False Representation; Federal Trademark Dilution; State of California Unlawful Business Practices; Interference with Contractual Relations; Intentional Interference with Prospective Economic Advantage; Negligent Interference with Prospective Economic Advantages; and Civil ConspiracyJURY TRIAL DEMANDED


NATURE AND BASIS OF ACTION
1. This action arises out of an international advertising and marketing scheme organized and orchestrated by Brian Wilson and his agents to promote the release of The Beach Boys’ long-awaited Smile album, at the expense of fellow Beach Boy Mike Love and The Beach Boys corporate entity, Brother Records, Inc. (“BRI”). This multimedia promotion shamelessly misappropriated Mike Love’s songs, likeness, and The Beach Boys trademark, as well as the Smile album itself, which has been identified with The Beach Boys for over thirty-seven years. The primary means used to implement the scheme was the use of “The Beach Boys” registered trademark, the misappropriation of images of Mike Love and the band, coupled with the “give- away” of over 2.6 million music CDs entitled “Good Vibrations.” This CD included a number of Beach Boys hit songs composed by Mike Love and Brian Wilson. The free Good Vibrations CD increased the sale of defendant Brian Wilson’s Smile CD, and defendant The Mail on Sunday’s newspapers, but it has had an adverse effect on the sales and value of the many Beach Boys CDs available for sale in the marketplace. Incredibly, the emails and correspondence by and between the defendants three weeks before the “give-away” on September 24, 2004 admit that they had to use The Beach Boys name and images to “engage” the audience. This suit seeks damages including the disgorgement of millions of dollars of illicit profits, and the protection of The Beach Boys trademark and the name and likeness of Mike Love and The Beach Boys
2. Mike Love, Brian Wilson, Carl Wilson, Dennis Wilson and Alan Jardine were the original members of the world famous Beach Boys band. From November 1961, when The Beach Boys released their first hit record Surfin, until the present, Mike Love, as the lead singer on most of their songs, has been the only member of the band to consistently perform live concerts. Brian Wilson essentially stopped touring in 1964, to be eventually replaced by current Beach Boy Bruce Johnston. Dennis Wilson passed away in 1983, Carl Wilson died in 1998, and Alan Jardine was not a member of the touring band from 1962 until 1965, and again from 1998 until the present. The current directors and equal shareholders of BRI are Mike Love, Brian Wilson, Carl Wilson’s estate, and Alan Jardine. Alan Jardine became a shareholder in 1973.
3. Contrary to the myth that Brian Wilson was the sole musical genius behind The Beach Boys songs, Mike Love and Brian Wilson are credited as co-authors of nearly all of The Beach Boys’ hits; and Mike Love and Carl Wilson carried the performing band for forty years. Many of Mike Love’s early compositional and lyrical contributions to The Beach Boys songs were concealed for many years by Brian Wilson’s father, Murray Wilson, who was the first manager of The Beach Boys, and then later by Brian Wilson, in order to direct the valuable songwriting royalties for The Beach Boys hits to Murray and Brian Wilson. However, this injustice was corrected after a four-month federal court jury trial and ensuing verdict and judgment in 1994 (hereinafter “the Love partnership action”) crediting Mike Love as the co-author of thirty-five of The Beach Boys’ songs, including such hits as California Girls, Wouldn’t It Be Nice, Help Me Rhonda, 409, and Be True To Your School. This judgment legally established Mike Love and Brian Wilson as partners in these songs and that Brian Wilson owed fiduciary duties to Mike Love in connection with their songs. Before the trial court decided on the amount of damages, Mike Love and Brian Wilson entered into a settlement agreement, i.e., a contract, wherein the settlement agreement was incorporated into the judgment.
4. In addition to his songwriting contributions to The Beach Boys, as the longtime front man for the band, Mike Love has been historically recognized as the primary voice and image of The Beach Boys; and Carl Wilson was historically recognized as the musical leader. After Carl’s death in 1998, Alan Jardine announced in the entertainment media that he no longer wished to tour with The Beach Boys; and Mike Love announced privately within BRI that he would no longer tour with Alan Jardine because of Jardine’s long and well documented history of mental and emotional problems, failure to perform, and abusiveness toward other band members. BRI then granted an exclusive license to Mike Love to perform at live concerts using The Beach Boys registered trademark. Since 1998, Mike Love has scrupulously fulfilled his license obligations, using the trademark to perform as The Beach Boys in approximately 150 live concerts per year all over the world. He has paid over eleven million dollars to BRI as royalties on this license.
5. In the same time frame following Carl Wilson’s death, Alan Jardine misappropriated the trademark, bastardized The Beach Boys name, altered the traditional Beach Boys harmonies, line-up and music, defamed Mike Love and The Beach Boys in the media, and then overtly infringed upon the trademark by using it to perform live concerts while duping ticket-buyers into believing it was the BRI-licensed Beach Boys. Jardine wreaked havoc in the marketplace causing BRI to sue for a permanent injunction which was granted and then upheld by the Ninth Circuit in Brother Records, Inc. v Jardine, 318 F.3d 900 (9th Cir. 2003). Although Jardine is still a 25% shareholder and a Director of BRI (receiving 25% of the license revenues), he is an adjudicated infringer who has breached his fiduciary duties to BRI.
6. Like Jardine, Brian Wilson has now with the “give-away” scheme, pursued a path to promote himself, destroy The Beach Boys trademark, and breach his fiduciary duties to BRI and to Mike Love. Historically, these breaches are the continuation of over thirty-five years of conduct by Brian Wilson to damage The Beach Boys and BRI. Between 1961 and 1966 Mike Love and Brian Wilson successfully collaborated with Carl and Dennis Wilson in the creation of hit after hit and album after album in the rapidly growing world of rock and roll music. Mike and Brian are recognized as prodigious song-writing pioneers in the early development of this musical genre. But beginning in 1965, drugs began to destroy Brian Wilson. By 1967, Brian lived either in his bed or in his sand-box in his Beverly Hills mansion. While Mike Love and The Beach Boys were touring without him, Brian was surrounded by drug addicts, drug dealers, parasites, and plagiarizers. In 1967, while Brian was living in an environment of drugs and physical and mental illness, Brian and The Beach Boys created the “Smile” album pursuant to their contract with Capitol Records, and paid for by Capitol. Brian also consulted some of the hangers-on that surrounded him at the time.
7. Between 1967 and 2002, Brian was essentially too ill to do anything but collect his royalties, including revenues from BRI and his 25% share of Mike Love’s license royalties. Between 1991 and 2002, Brian was under a court-ordered conservatorship, first with a court appointed lawyer until 1995, and then with his just married wife. In 2002, Brian began to resurrect his career by touring with his own band. However his “performance” has been, for the most part, limited by his past mental and emotional problems. In order to promote himself, Brian began to misappropriate BRI property. In 2003, he misappropriated “Pet Sounds,” a Beach Boys album, all while serving as a fiduciary to BRI. In September, 2004, Brian Wilson, without permission or a license from BRI, the owner of Smile, orchestrated the scheme to release a Smile CD. Up until then, Smile had been called the most recognized unreleased album in the history of rock ‘n’ roll. Smile has obtained “secondary meaning” as a Beach Boys property, and historically has been identified with The Beach Boys trademark. The defendants here exploited Mike Love and The Beach Boys’ tie-ins with Brian Wilson and Smile to promote the sale of the Smile CD, The Mail on Sunday newspaper, and the services of BigTime.TV.
8. The acts and omissions perpetrated by defendants to misappropriate the songs, the copyrights, publicity rights, the names and likenesses, and The Beach Boys trademark are summarized as follows:
· The Mail on Sunday’s unauthorized use of Mike Love’s songs, name, and images in its September 24, 2004 edition to promote the giveaway of 2.6 million copies of the Good Vibrations CD and the associated sale of 2.6 million copies of its newspaper;
· The Mail on Sunday’s unauthorized use of The Beach Boys trademark to promote the giveaway of 2.6 million copies of the Good Vibrations CD and the associated sale of 2.6 million copies of its newspaper;
· The Sanctuary defendants’ unauthorized use of Mike Love’s musical compositions California Girls, Good Vibrations, Wouldn’t It Be Nice, Darlin and Help Me Rhonda, which were included on the Good Vibrations CD;
· The Sanctuary defendants’ unauthorized use of Mike Love’s name and images on the cover of the Good Vibrations CD;
· The Sanctuary defendants’ unauthorized use of The Beach Boys trademark on the cover of the Good Vibrations CD;
· BigTime.TV’s unauthorized use of Mike Love’s songs, name, and images and the unauthorized use of The Beach Boys trademark to promote the Good Vibrations CD on television and the Internet, and to promote its own services;
· Brian Wilson’s breach of his partnership agreement with Mike Love by exploiting their co-authored songs for Brian Wilson’s benefit and to Mike Love’s detriment;
· Brian Wilson’s breach of his fiduciary duty to Mike Love by replacing the lyrics Mike Love wrote for their co-authored Good Vibrations song with those written by Van Dyke Parks for the version of Good Vibrations that appears on the Smile CD;
· Brian Wilson’s breach of his fiduciary duty to Mike Love by not informing Mike Love of the inclusion of their co-authored songs on the Good Vibrations CD used to promote the sales of Brian Wilson’s Smile CD;
· Brian Wilson’s breach of his fiduciary duty to Mike Love by participating in the scheme to give away the Good Vibrations CD, which included many Beach Boy hits, thereby devaluing other Beach Boys albums being sold by BRI and causing less of these other Beach Boys albums to be sold;
· Defendants David Leaf, Jean Sievers, SOOP LLC, The Lippin Group, and others tied in the giveaway of the Good Vibrations CD with a worldwide promotion of Smile by, inter alia, producing a television “documentary” using copyrighted Beach Boys materials and The Beach Boys trademark in such a way as to represent to the world that Smile was a BRI product, and that Smile was the property of Brian Wilson and that Brian Wilson and his new band was, in fact, the real Beach Boys.
PARTIES
9. Plaintiff Mike Love is a Nevada resident.
10. On information and belief, at all relevant times alleged herein, defendant The Mail On Sunday was a business organization of form unknown to plaintiff.
11. On information and belief, at all relevant times alleged herein, defendant Associated Newspapers Ltd. was a business organization of form unknown to plaintiff and the parent organization to or otherwise affiliated with The Mail on Sunday.
12. On information and belief, at all relevant times alleged herein, defendant Sanctuary Records Group Ltd. was a business organization of form unknown to plaintiff.
13. On information and belief, at all relevant times alleged herein, defendant Sanctuary Records Group NY was a business organization of form unknown to plaintiff.
14. On information and belief, at all relevant times alleged herein, defendant Sanctuary Music Management, Inc. was a New York corporation.
15. On information and belief, at all relevant times alleged herein, defendant Sanctuary Music Productions, Inc. was a New York corporation.
16. On information and belief, at all relevant times alleged herein, defendant BigTime.TV was a business organization of form unknown to plaintiff.
17. On information and belief, at all relevant times alleged herein, defendant Brian Wilson was a resident of Los Angeles County, California.
18. On information and belief, at all relevant times alleged herein, defendant Jean Sievers was a resident of Los Angeles County, California.
19. On information and belief, at all relevant times alleged herein, defendant The Lippin Group, Inc. was a California corporation.
20. On information and belief, at all relevant times alleged herein, defendant SOOP LLC was a California limited liability company.
21. On information and belief, at all relevant times alleged herein, defendant David Leaf was a resident of Los Angeles County, California.
22. Does 1 through 100 are sued herein under fictitious names. Their true names and capacities, whether individual, corporate or otherwise, are unknown to plaintiff. When their true names and capacities are ascertained, plaintiff will amend this Complaint by inserting their names and capacities. Plaintiff is informed and believes, and on that basis alleges, each of the fictitiously named defendants is responsible in some way for the occurrences herein alleged, and those defendants proximately caused plaintiff’s damages. Each reference in this Complaint to “defendant,” “defendants,” or a specifically named defendant refers to all defendants sued under fictitious names.
23. Unless otherwise alleged, whenever reference is made in this Complaint to any act of “defendant,” “defendants,” or a specifically named defendant, such allegation shall mean that each defendant acted individually and jointly with the other defendant named in the Complaint.
24. Unless otherwise alleged, any reference to any act or omission of any corporate or business defendant, such allegation shall mean that such corporation or other business defendant did the acts or omissions alleged in this Complaint through its officers, directors, employees, agents, and/or representatives while acting within the actual or apparent scope of their authority.
25. At all relevant times alleged herein, each of the defendants has acted as an agent, representative, partner, joint venturer, employee, assistant, or aide of each of the other defendant and has acted within the course and scope of said agency, representation, partnership, or joint venture.
JURISDICTION AND VENUE
26. This court has subject matter jurisdiction over the federal copyright and trademark claims under 28 U.S.C. §1331 and 1338(a) and 15 U.S.C. §1121(a). This court also has subject matter jurisdiction over this matter pursuant to the diversity statute 28 U.S.C. §1332. This court has subject matter jurisdiction over the State of California claims based on the ancillary and pendant jurisdiction of the court under 28 U.S.C. §1338(b), as such claims for relief are joined with substantial and related claims under the United States copyright and trademark law, as well as supplemental jurisdiction over said claims pursuant to 28 U.S.C. §1367, because the state claims are so related to the federal claims that they form part of the same case or controversy under Article II of the United States Constitution.
27. This court has personal jurisdiction over the defendants because defendants have sufficient minimum contacts in California to render the exercise of jurisdiction over them by this court consistent with traditional notions of fair play and substantial justice.
28. Venue is proper in the Central District of California under 28 U.S.C. §1391(b) and (c) because (1) defendants transact business within this judicial district and are otherwise subject to personal jurisdiction in this jurisdictional district; (2) defendants have committed tortious acts that are the subject of this Complaint within this jurisdictional district, including the marketing, distribution, advertisement, and sale of their infringing products or services; (3) this lawsuit primarily involves the property rights of plaintiff in his duly registered copyright and licensed trademark, and said property rights are held within this judicial district, and therefore a substantial part of the events giving rise to plaintiff’s claims occurred or should be deemed to have occurred within this jurisdictional district; and (4) one or more defendants reside in this judicial district.
FACTS
29. Plaintiff Mike Love is, and always has been, the front man for The Beach Boys, the famous band that continues to perform at live concerts around the world. Mike Love started The Beach Boys in 1961 with his cousins the Wilson brothers – Brian, Carl, and Dennis, along with Brian Wilson’s high school friend Alan Jardine. In February 1962, Alan Jardine left the band to attend college, and David Marks took Alan Jardine’s place. Within a few months, the band was a huge success and signed a contract with Capitol Records in July 1962.
30. From 1964, Brian Wilson essentially stopped touring with The Beach Boys due to a nervous breakdown and mental illness. Although Glen Campbell first replaced Brian Wilson for The Beach Boys’ tours, Glen Campbell was soon replaced by Bruce Johnston, who still tours with the band.
31. Since fellow Beach Boy Carl Wilson’s death in 1998, Mike Love has been the only original member of the group to perform on tour with The Beach Boys, and the public recognizes Mike Love as the face and voice of today’s Beach Boys.
32. The corporate entity for The Beach Boys is Brother Records, Inc. (“BRI”), a California corporation formed in 1967. BRI’s shareholders are Mike Love, Brian Wilson, Carl Wilson’s estate, and Alan Jardine. The Beach Boys trademark is registered with the United States Patent and Trademark Office, and BRI is the owner of The Beach Boys mark. The Beach Boys mark is a famous trademark and has been widely used by the public to identify BRI’s touring band and albums since BRI began using the mark in the 1960’s.
33. In a May 4, 1973 meeting of the BRI Board of Directors, BRI shareholders Brian Wilson, Dennis Wilson, Carl Wilson, Mike Love, and Alan Jardine resolved to enter into an “Agreement Of Indemnification” which provided, in pertinent part, the following:

“WHEREAS, SHAREHOLDERS are shareholders of record of American Recreation Corp., The Beach Boys Productions, Inc., Brother Records, Inc., Brother Studios, Ltd., and Wilojarston Music Ltd., hereinafter collectively referred to as CORPORATIONS; and
WHEREAS, a judgment was rendered against two of the CORPORATIONS based on the representation of one shareholder, and;
WHEREAS, the SHAREHOLDERS mutually desire to have all decisions of financial consequence to each corporation reviewed by the Board of Directors of each corporation and by the CORPORATIONS’ Financial Manager, Mr. Stephen Love, in order to avoid future problems in the nature of the aforementioned litigation matter; and
WHEREAS, a method of enforcement is deemed necessary;
NOW, THEREFORE, in consideration of these premises and the mutual promises set forth herin, the parties hereto agree as follows:
Any shareholder who without prior authorization of the Board or Boards of Directors enters into an agreement with any third party or parties which is not subsequently ratified by the written approval of all of the parties hereto, and/or the Board or Boards of Directors of the involved Corporation or Corporations, shall be liable to the Corporation or Corporations for any and all proximate losses, costs or expenses resulting therefrom.” (Emphasis Added.) . . .
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fee, which may be set by the Court in the same action or on a separate action brought for that purpose, in addition to any other relief to which he may be entitled.”
34. This “Agreement of Indemnification” was executed by Brian Wilson and all of The Beach Boys.
35. Because Mike Love has long been recognized as the face and voice of today’s Beach Boys, BRI has granted Mike Love the exclusive license to use The Beach Boys trademark to perform as The Beach Boys.
36. Mike Love and Brian Wilson are the songwriters or co-authors for many of The Beach Boys hits, including, but not limited to, “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda” – songs that are germane to this lawsuit, as well other hits such as “I Get Around,” “409,” “Dance, Dance, Dance,” “Catch A Wave,” and “Little Saint Nick.” The copyrights for all of these musical compositions have been registered with the United States Copyright Office.
37. Upon information and belief, all copies of the September 24, 2004 edition of the Mail on Sunday newspaper included, as an insert, a free CD of several Beach Boy hits, including Mike Love’s “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda” musical compositions. Approximately 2,605,000 copies of the September 24, 2004 edition of The Mail on Sunday with the free CD were circulated around the world, including, upon information and belief, in the United States and California. The attached Exhibit A is The Mail on Sunday’s web site announcement from the www.dailymail.co.uk web site, which prominently displays The Beach Boys trademark and touts, “FREE Beach Boys Classic CD with this week’s Mail on Sunday!” The web site also reads:

“Music lovers are in for a special treat this week - a ten-track CD, Good Vibrations, featuring some of the Beach Boys' best-loved songs performed by Brian Wilson, FREE inside every copy of The Mail on Sunday.
With tracks such as California Girls, Good Vibrations and Wouldn't It Be Nice reworked by Wilson, the CD makes for superb listening.
The songs are all classic pop numbers and The Mail on Sunday is giving you a fantastic chance to enjoy hot versions by the creative genius behind the band's original line-up.” (Emphasis in original.)

38. According to The Mail on Sunday’s web site, there was an elaborate television advertisement campaign announcing the giveaway of the CD, which “boosted circulation by 500K.” The Mail on Sunday’s web site further reads, “On September 26 our Good Vibrations CD brought back memories of summer (whenever that was . . . ) with ten of the Beach Boys’ greatest songs . . .. Plus, the disc offered two exclusive videos of live performances by Brian and the band . . .. This feelgood CD boosted our weekly sale to 2.605 million copies.”
39. The cover of the subject edition of the The Mail on Sunday, a copy of which is attached as Exhibit B, reads at the top of the page, “YOUR FREE CD IS INSIDE THIS PAPER.” In extremely large letters – larger than the paper’s The Mail on Sunday’s masthead, appears the phrase with The Beach Boys trademark: “FREE INSIDE . . . BEACH BOYS SURF HITS CD” next to a photo of the CD’s cover, a cover that includes three photographs of the members of The Beach Boys, and each photo includes Mike Love’s image.
40. An enlarged color copy of the jacket for the free CD is attached hereto as Exhibit C. This jacket features a large photo of Brian Wilson along with the aforementioned three other photos; (1) a photo of the five founding members of The Beach Boys apparently at the beach, including the likeness of Mike Love; (2) a photo of four of the founding members, along with David Marks, carrying a surfboard, including the likeness of Mike Love; and (3) a photo of four of the founding members, along with Bruce Johnston, in a rubber raft, including the likeness of Mike Love. The bottom of the CD cover includes The Beach Boys trademark and reads, “TEN SURFIN’ CLASSICS BY THE BEACH BOYS’ BRIAN WILSON.”
41. The back of the CD cover lists ten songs, most of which were big hits for The Beach Boys, including: “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda,” “Love and Money,” “God Only Knows,” “Soul Searchin’,” “Getting In Over My Head,” and “Sloop John B.” The jacket also contains an advertisement for Brian Wilson’s “Smile” album and directs anyone interested in “further details” to visit the website: www.bigtime.tv/smile.
42. Defendant BigTime.TV’s web site, which contains a logo of the Sunday Mail, reads as follows: “. . . featuring ten Brian Wilson tracks, including seven Beach Boys classics, plus two live videos. Good Vibrations also includes the world premier of SMILE with a 4Play preview of the whole first movement.”
43. Upon information and belief, defendants Sanctuary Records Group Ltd., Sanctuary Records Group NY, Sanctuary Music Management, Inc., and Sanctuary Music Productions, Inc. purported to have the authority to license Mike Love’s “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda” musical compositions, when in fact they had no such authority.
44. The free CD itself represents, “ALL RIGHTS OF THE PRODUCER AND THE OWNER OF THE WORKS REPRODUCED RESERVED. UNAUTHORIZED COPYING, HIRING, LENDING, PUBLIC PERFORMANCE, AND BROADCASTING OF THIS RECORDING PROHIBITED.” The free CD also provides, “ALTHOUGH YOU HAVE BEEN GIVEN THE CD FREE OF CHARGE THE MAIL ON SUNDAY HAS PAID THE ARTISTS AND WRITERS (OR THEIR REPRESENTATIVES) FOR THE USE OF THEIR MUSIC.” However, defendants did not pay Mike Love the fees or royalties he is entitled to for the use of his copyrighted musical compositions, for the use of his name and images, or for the use of The Beach Boys trademark.
45. On information and belief, Jean Sievers, SOOP LLC, and The Lippin Group, Inc. are managers for Brian Wilson, and David Leaf is a writer and producer for Brian Wilson. Jean Sievers, SOOP LLC, The Lippin Group, and David Leaf were responsible for the promotion of Brian Wilson’s Smile CD, which included promoting, designing, creating, and supplying the free Good Vibrations CD in The Mail On Sunday. Jean Sievers, SOOP LLC, The Lippin Group, and David Leaf were also responsible for the design and/or content of the covers and packaging for the Good Vibrations CD, which included BRI’s The Beach Boys trademark and Mike Love’s photographs.
FIRST CAUSE OF ACTION
Violation of Statutory Right to Publicity
California Civil Code §3344
AGAINST ALL DEFENDANTS AND DOES 1-50
46. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
47. Defendants knowingly used plaintiff’s name, photographs, and likenesses to defendants’ commercial advantage by aiding defendants’ distribution of millions of their Good Vibrations CDs with Mike Love’s songs, to increase the sales and the solicitation of the sales of The Mail, The Daily Mail, or The Mail on Sunday, to increase Internet traffic to the Daily Mail and BigTime.TV’s web sites, to advertise and increase the sale of the Smile CD, all without plaintiff’s consent, and in violation of plaintiff’s rights under California Civil Code section 3344. There was a direct connection between defendants’ use of plaintiff’s name, photographs, and likenesses and defendants’ commercial purposes.
48. As a result of defendants’ use of plaintiff’s name, photographs, and likenesses, defendant has been damaged. Furthermore, defendants’ aforesaid conduct has caused plaintiff to suffer irreparable injury and damage, and, unless restrained, will cause further irreparable injury and damage to plaintiff. Plaintiff has no adequate remedy at law.
49. Defendants’ misappropriation of plaintiff’s name and images has been carried on by the defendants with a willful and malicious and conscious disregard of plaintiff’s right of publicity; therefore plaintiff seeks to recover punitive damages against defendants.
SECOND CAUSE OF ACTION
Violation of the Common Law Right of Publicity
AGAINST ALL DEFENDANTS AND DOES 1-100
50. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
51. Defendants’ unauthorized use of plaintiff’s name, photographs, and likenesses for defendants’ commercial advantage is a violation of plaintiff’s right of publicity under the common law of California and other states.
52. Defendants used plaintiff’s name, photographs, and likenesses to defendants’ commercial advantage by aiding defendants’ distribution of millions of their Good Vibrations CDs with Mike Love’s songs, to increase the sales and the solicitation of the sales of The Mail, The Daily Mail, or The Mail on Sunday, to increase Internet traffic to the Daily Mail and BigTime.TV’s web sites, to advertise and increase the sale of the Smile CD, all without plaintiff’s consent, and in violation of plaintiff’s rights under California Civil Code section 3344.
53. As a result of defendants’ use of plaintiff’s name, photographs, and likenesses, defendant has been damaged. Furthermore, defendants’ aforesaid conduct has caused plaintiff to suffer irreparable injury and damage, and, unless restrained, will cause further irreparable injury and damage to plaintiff. Plaintiff has no adequate remedy at law.
54. Defendants’ misappropriation of plaintiff’s name and images has been carried on by the defendants with a willful and malicious and conscious disregard of plaintiff’s right of publicity; therefore plaintiff seeks to recover punitive damages against defendants.
THIRD CAUSE OF ACTION
Breach of Covenant of Good Faith and Fair Dealing
AGAINST BRIAN WILSON AND DOES 51-60 RE SETTLEMENT AGREEMENT
55. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
56. Implied in the settlement agreement between Plaintiff and Wilson was a covenant of good faith and fair dealing.
57. Brian Wilson breach the covenant of good faith and fair dealing, by among other things, not seeking nor obtaining plaintiff’s approval prior to the use of plaintiff’s musical compositions to be used on the free Good Vibrations CD used to promote and increase the sales of, inter alia, Brian Wilson’s Smile CD and the Mail on Sunday newspaper.
58. As a direct and proximate result of Brian Wilson’s breach of the covenant of good faith and fair dealing, he has directly damaged plaintiff through the loss of royalties according to proof. Further, Brian Wilson’s breach of contract has caused permanent harm to the value and to the sales of plaintiff’s musical compositions on other CDs and other media.
FOURTH CAUSE OF ACTION
Action for Indemnity Under Written Indemnity Contract
AGAINST BRIAN WILSON AND DOES 51-60 RE INDEMNITY AGREEMENT
59. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
60. Brian Wilson, Dennis Wilson, Carl Wilson, Michael Love, and Alan Jardine, as the five equal shareholders of BRI, entered into the aforementioned Agreement of Indemnification on or about May 4, 1973.
61. Pursuant to the Agreement of Indemnification, Brian Wilson agreed that “Any shareholder who without prior authorization of the Board or Boards of Directors enters into an agreement with any third party or parties which is not subsequently ratified by the written approval of all of the parties hereto, and/or the Board or Boards of Directors of the involved Corporation or Corporations, shall be liable to the Corporation or Corporations for any and all proximate losses, costs or expenses resulting therefrom.”
62. Furthermore, Brian Wilson also agreed in the Agreement of Indemnification that “If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fee, which may be set by the Court in the same action or on a separate action brought for that purpose, in addition to any other relief to which he may be entitled.”
63. However, Brian Wilson, by entering into agreements with several third parties in connection with the promotion of the sales of Brian Wilson’s Smile CD through the giveaway of the Good Vibrations CD with the sale of The Mail on Sunday’s newspapers caused damages to Plaintiff, for which Brian Wilson owes indemnity pursuant to the Agreement of Indemnification agreement.
64. As a direct and proximate result of Brian Wilson’s actions, Mike Love has incurred and continues to incur an undetermined amount of damages. Furthermore, the Agreement of Indemnification authorizes the prevailing party to recover reasonable attorneys’ fees in any action to enforce the terms of the Agreement of Indemnification.
FIFTH CAUSE OF ACTION
DECLARATORY RELIEF
California Civil Code § 1559 and California Code of Civil Procedure § 1060
REGARDING AFORESAID SETTLEMENT AND INDEMNITY AGREEMENTS
65. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
66. Actual controversies have arisen and now exist between plaintiff, on one hand, and Brian Wilson, on the other, regarding plaintiff’s rights under the aforesaid settlement and indemnity agreements. Brian Wilson continues to enter into agreements with third parties, agreements which are not subsequently ratified by written approval of all of the parties to the Agreement of Indemnification and which continue to damage plaintiffs, while Brian Wilson has maintained that he is not responsible for plaintiff’s damages.
67. Plaintiff desires a judicial determination of his rights under the settlement and indemnity agreements and a declaration as to plaintiff’s rights under the settlement and indemnity agreements and Brian Wilson’s duties under these two agreements to provide plaintiffs the performances Brian Wilson promised under these agreements.
68. A judicial declaration is necessary and appropriate at this time under all the circumstances so plaintiff may determine and establish his rights under the settlement and indemnity agreements.
69. A judicial declaration is also necessary and appropriate at this time under all the circumstances because as a result of Brian Wilson’s agreements with defendants and other third parties, plaintiff continues to be damaged
SIXTH CAUSE OF ACTION
Breach of Fiduciary Duty
AGAINST BRIAN WILSON
70. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
71. By virtue of the judgment in Love v. Wilson, the jury found that a partnership between plaintiff and Wilson existed, which imposed a fiduciary duty on Wilson relating to their co-authored.
72. Brian Wilson violated the fiduciary duty of care, loyalty, candor, and independence owed to Mike Love and has acted to put his personal interests ahead of the interest of Mike Love.
73. Brian Wilson violated his fiduciary duties by entering into transactions with defendants and others without regard to the fairness of the transactions to Mike Love, and failed to disclose his actions to plaintiff.
74. As demonstrated by the allegations above, Brian Wilson failed to exercise the care required, and breached his duties of care, loyalty, candor, and independence owed to Mike Love by, among other reasons: (a) instead of attempting to maximize value for Mike Love, Brian Wilson took actions to benefit himself at the expense of Mike Love; (b) failing to disclose to Mike Love all material information in connection with The Mail on Sunday’s promotion of Brian Wilson’s Smile CD; and (c) ignoring or not protecting against the conflicts of interest resulting from Brian Wilson’s own interrelationships or connections with The Mail on Sunday’s promotion of Brian Wilson’s Smile CD.
75. By reason of the foregoing acts, practices, and courses of conduct, Brian Wilson failed to exercise ordinary care and diligence in the exercise of his fiduciary obligations toward Mike Love.
76. Brian Wilson engaged in self-dealing, did not act in good faith towards Mike Love, and breached his fiduciary duties to Mike Love and thereby damaged Mike Love.
SEVENTH CAUSE OF ACTION
First Claim for Copyright Infringement – Unlawful Reproduction of Copyrighted Work
17 U.SC. §106(1)
AGAINST ALL DEFENDANTS OTHER THAN WILSON AND DOES 1-100
77. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
78. Plaintiff is the co-author of the musical compositions “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda,” and he receives songwriter royalties for this exclusive right to these musical compositions, in which plaintiff has a vested, beneficial interest.
79. Upon information and belief, on or about September 24, 2004, and continuing for some time thereafter, defendants infringed plaintiff’s rights and interests in the copyrighted musical compositions “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda” by copying and distributing into the marketplace these musical compositions.
80. The unauthorized act of defendants in making copies of plaintiff’s “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda” musical compositions violates plaintiff’s right to reproduce these musical compositions under 17 U.S.C. §106(1) and constitutes infringement of plaintiff’s copyright.
81. Plaintiff has been and is being substantially damaged by said infringement, particularly, upon information and belief, the mass copying and free distribution of these musical compositions by defendants has adversely impacted the value of these musical compositions and recordings of these musical compositions. Further harm and injury to plaintiff is imminent and plaintiff is without adequate remedy at law unless defendants’ infringement is enjoined by the court.


EIGHTH CAUSE OF ACTION
Second Claim for Copyright Infringement – Unlawful Preparation of Derivative Work
17 U.SC. §106(2)
AGAINST ALL DEFENDANTS OTHER THAN WILSON AND DOES 1-100
82. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
83. Plaintiff is the co-author of the musical compositions “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda,” and he receives songwriter royalties for this exclusive right to these musical compositions, in which plaintiff has a vested, beneficial interest.
84. In doing the acts alleged, defendants violated plaintiff’s right and interests to prepare derivative works of his “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda” musical compositions to the public under 17 U.S.C. § 106(2), and said acts were and are infringements of plaintiff’s copyright in these musical compositions.
85. Plaintiff has been and is being substantially damaged by said infringement, particularly, upon information and belief, the mass copying and free distribution of these musical compositions by defendants has adversely impacted the value of these musical compositions and recordings of these musical compositions. Further harm and injury to plaintiff is imminent and plaintiff is without adequate remedy at law unless defendants’ infringement is enjoined by the court.
NINTH CAUSE OF ACTION
Third Claim for Copyright Infringement – Unlawful Distribution of Copyrighted Work
17 U.SC. §106(3)
AGAINST ALL DEFENDANTS OTHER THAN WILSON AND DOES 1-100
86. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
87. Plaintiff is the co-author of the musical compositions “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda,” and he receives songwriter royalties for this exclusive right to these musical compositions, in which plaintiff has a vested, beneficial interest.
88. In doing the acts alleged, defendants violated plaintiff’s right and interest to distribute copies of his “Good Vibrations,” “California Girls,” “Wouldn’t It Be Nice,” “Darlin’,” and “Help Me Rhonda” musical compositions to the public under 17 U.S.C. § 106(3), and said acts were and are infringements of plaintiff’s copyright in these musical compositions.
89. Plaintiff has been and is being substantially damaged by said infringement, particularly, upon information and belief, the mass copying and free distribution of these musical compositions by defendants has adversely impacted the value of these musical compositions and recordings of these musical compositions. Further harm and injury to plaintiff is imminent and plaintiff is without adequate remedy at law unless defendants’ infringement is enjoined by the court.
TENTH CAUSE OF ACTION
Federal Trademark Infringement - 15 U.S.C. §1114
AGAINST ALL DEFENDANTS AND DOES 1-100
90. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
91. Plaintiff holds the exclusive license to The Beach Boys trademark for public performances as The Beach Boys.
92. Defendants’ infringing Beach Boys and The Beach Boys marks are reproductions, copies, or colorable imitations of The Beach Boys federally-registered trademark. Defendants’ use of such marks in commerce (including, but not limited to, advertisements, distribution, and sales) is not authorized by plaintiff and has: (1) caused confusion and is likely to cause confusion by the public; and (2) deceived the public and is likely to deceive the public into believing that some sponsorship, association, endorsement, or relationship existed or exists between plaintiff and defendants when in fact there never has been any such sponsorship, association, endorsement, or relationship between plaintiff and defendants. Hence, defendants’ use of The Beach Boys trademark infringes plaintiff’s right in “The Beach Boys” trademark in violation of 15 U.S.C. §1114.
93. Defendants have used “The Beach Boys” mark with actual and/or constructive knowledge that defendants’ use of the Beach Boys and “The Beach Boys” marks are confusingly similar to and exactly the same as plaintiff’s licensed “The Beach Boys” mark.
94. As a direct and proximate result of defendant’s intentional or, in the alternative, unintentional acts of infringement, plaintiff has been and continues to be injured in his business and property, and has sustained and will continue to sustain substantial damage to his business, goodwill, reputation, and profits. One example of plaintiff’s damages is that defendants’ infringement has decreased the value of plaintiff’s rights in The Beach Boys trademark. The precise nature and amount of these accrued and continuing damages are not presently known to plaintiff at this time, but may be measured by a reasonable royalty rate on all copies of the infringing Beach Boys and The Beach Boys products or related products sold, distributed, given away for free or caused to be sold, distributed, or given away for free by defendants. As a result of defendants’ wrongful conduct, plaintiff has also been forced to incur attorneys’ fees and costs.
95. Plaintiff has no adequate remedy at law against the infringement of his rights as alleged herein. Unless defendants are preliminarily and permanently enjoined from their unlawful infringement of The Beach Boys mark, plaintiff will continue to suffer irreparable harm in the form of confused customers, ticket buyers, and fans, lost sales and profits, harm to his goodwill, and other losses. Plaintiff is entitled to temporary, preliminary, and permanent injunctive relief as prayed for herein pursuant to 15 U.S.C. §1116.
96. Plaintiff is also entitled to an award of defendants’ profits unlawfully obtained by way of their infringing uses pursuant to 15 U.S.C. §1117. Such profits constitute the gross sales by defendants of all products and services marketed, sold, or distributed with The Beach Boys trademark.
97. Plaintiff also seeks to have all of defendants’ products, services, CDs, CD covers, inserts, web site pages, and other infringing uses of The Beach Boys mark in the possession, custody, or control of defendants or its agents, employees, or attorneys, or those persons or entities otherwise acting in concert with defendants, delivered up and destroyed pursuant to 15 U.S.C. §1118.
98. To the extent defendants’ infringement of plaintiff’s trademark rights was and is intentional, plaintiff is also entitled to an award of treble damages, prejudgment interest, and reasonable attorneys’ fees against defendants pursuant to 15 U.S.C. §1117.
ELEVENTH CAUSE OF ACTION
Federal Unfair Competition - 15 U.S.C. §1114
AGAINST ALL DEFENDANTS AND DOES 1-100
99. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
100. Defendants’ use in commerce of a copy, exact duplicate, or colorable imitation of The Beach Boys mark constitutes a misappropriation of a distinguishing characteristic of plaintiff himself and his touring Beach Boys band and a false representation to the public of the character and quality of defendants’ goods and services, and is likely to cause confusion, mistake, or deception – and has in fact caused confusion, mistake, or deception, as to the affiliation, connection, or association of defendants with plaintiff and plaintiff’s touring Beach Boys band as to the origin, sponsorship, or approval of defendants’ goods and services by plaintiff and plaintiff’s Beach Boys touring band, as well as confusion, mistake, or deception concerning the source of plaintiff’s goods and services, all in violation of 15 U.S.C. §1125(a) and to the great damage of plaintiff, plaintiff’s touring Beach Boys band, and the public.
101. As a direct and proximate result of defendants’ false representations and misappropriation of The Beach Boys mark, through the use of a copy, exact duplicate, or colorable imitation thereof in interstate commerce, defendants have injured and continue to injure plaintiff’s business and property, and plaintiff has sustained and will continue to sustain substantial damage to his business, goodwill, reputation, and profits. One example of plaintiff’s damages is that defendants’ infringement has decreased the value of plaintiff’s rights in The Beach Boys trademark. The precise nature and amount of these accrued and continuing damages are not presently known to plaintiff at this time, but may be measured by a reasonable royalty rate on all of the infringing products and services sold, distributed, or given away free by defendants. As a result of defendants’ wrongful conduct, plaintiff has also been forced to incur attorneys’ fees and costs.
102. Plaintiff has no adequate remedy at law against defendants’ acts of false representation and unfair competition as alleged herein. Unless defendants are enjoined from their above-identified conduct, plaintiff will continue to suffer irreparable harm. Plaintiff is entitled to preliminary and permanent injunctive relief as prayed for herein pursuant to 15 U.S.C. §1116.
103. Plaintiff is also entitled to an award of defendants’ profits unlawfully obtained by way of its infringing uses pursuant to 15 U.S.C. §1117. Such profits constitute the direct and indirect gross sales by defendants of all products and services bearing The Beach Boys trademark.
104. Plaintiff also seeks to have all of defendants’ products, CDs, CD covers, web site pages, and advertisements, and other infringing uses of The Beach Boys trademark in the possession, custody, or control of defendants or their agents, employees, or attorneys or those persons or entities otherwise acting in concert with defendants, delivered up and destroyed pursuant to 15 U.S.C. §1118.
105. To the extent defendants’ violations of 15 U.S.C. §1125(a) were and continue to be intentional, plaintiff is also entitled to an award of treble damages, prejudgment interest, and reasonable attorneys’ fees against defendants pursuant to 15 U.S.C. §1117.
TWELFTH CAUSE OF ACTION
Federal Trademark Dilution - Lanham Act §43(c), 15 U.S.C. §1125(c)
AGAINST ALL DEFENDANTS AND DOES 1-100
106. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
107. Defendants’ use of The Beach Boys trademark in connection with their advertising, marketing, distributing, selling, and giving away for free their CDs, newspapers, and other products and services in order to promote the competing product of Brian Wilson’s performances has caused and will continue to cause dilution of the distinctive quality of The Beach Boys mark in the minds of consumers in violation of the Federal Trademark Dilution Act of 1995, Lanham Act §43(c), 15 U.S.C. §1125(c).
108. Plaintiff is informed and believes that defendants have used The Beach Boys mark with the willful intent to trade on plaintiff’s reputation and the reputation of his Beach Boys touring band, and/or to cause dilution of The Beach Boys mark in violation of the Federal Trademark Dilution Act of 1995, Lanham Act §43(c), 15 U.S.C. §1125(c).
109. As a result of defendants’ unlawful and willful dilution of the distinctive quality of The Beach Boys mark, plaintiff has been damaged in an amount to be determined at trial. Such dilution has also caused plaintiff irreparable harm, and plaintiff will continue to be irreparably harmed unless defendants’ unlawful conduct in enjoined.
THIRTEENTH CAUSE OF ACTION
State of California Unfair, Deceptive or Unlawful Business Practices
California Bus. & Prof. Code § 17200 et seq.
AGAINST ALL DEFENDANTS AND DOES 1-50
110. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
111. The above unlawful, unfair, and/or fraudulent acts of defendants constitute unfair and/or unlawful acts under Business and Professions Code section 17200 et seq.
112. Said violations render defendants liable to plaintiff for restitution or injunctive relief or both.
FOURTEENTH CAUSE OF ACTION
Interference with Contractual Relations with BRI
AGAINST ALL DEFENDANTS AND DOES 1-50
113. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
114. At all times relevant hereto, plaintiff had a contract with BRI granting Mike Love the license to use BRI’s The Beach Boys trademark. The license is the single greatest asset of BRI and it has generated more than $11.5 million of revenue for BRI since 1998. The validity of the license has been upheld by the Ninth Circuit notwithstanding Alan Jardine’s efforts to destroy it. For the past four years, defendant Brian Wilson has made repeated threats to terminate the license unless plaintiff has acquiesced to various demands made by Wilson. Defendant Wilson has engaged in a well documented series of acts to perpetrate extortionate threats against the license.
115. Defendants knew of the existence of plaintiff’s contract with BRI granting Mike Love the license to use BRI’s The Beach Boys trademark. In particular, the defendant Wilson has held a position of fiduciary responsibility to BRI in connection with the preservation and enhancement of the license.
116. Defendants intentionally engaged in the aforesaid acts or conduct relating to the promotion of the Smile CD and the giveaway of the Good Vibrations CD, which prevented plaintiff from performing his contract with BRI to use The Beach Boys trademark or that caused performance under the contract to be more expensive or burdensome. In particular, by misappropriating the Trademark and the name and images of the band, and by “giving-away” Beach Boys classic hits, defendants have caused performance under the contract (License) to become more expensive and burdensome. In his capacity as one of the four Directors of BRI, the defendant, Brian Wilson, in concert with the other defendants, has further interfered with the performance of plaintiff’s contract with BRI by the following acts: (a.) organizing and orchestrating the described scheme; (b) failing to disclose the scheme to BRI and to plaintiff; (c) threatening to vote to revoke the license in the event plaintiff either individually or in his capacity as a Director of BRI attempted to obtain legal redress for defendant, Brian Wilson’s illicit conduct – thus engaging in extortion to shield himself from liability; (d) making promises and inducements to Alan Jardine, a co-director of BRI, in order to induce Jardine’s vote to revoke the license and to block BRI from seeking legal redress for Wilson’s interference with the license; (e) threatening to revoke the license and either tour with Jardine or remove the touring license from the marketplace in order to promote Wilson’s touring band; and (f) engaging in several years of touring activity in competition with the license, and undermining its effectiveness in the marketplace while remaining as a Director of BRI.
117. Defendants intended preventing plaintiff from performing his contract with BRI to use The Beach Boys trademark or intended causing performance under the contract to be more expensive or burdensome.
118. Such acts or conduct by defendants were a cause of damage to plaintiff.
FIFTEENTH CAUSE OF ACTION
Interference with Contractual Relations with Rondor Music
AGAINST ALL DEFENDANTS EXCEPT BRIAN WILSON AND DOES 1-50
119. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
120. At all times relevant hereto, plaintiff had a contract with Rondor Music entitling him to songwriting royalties on certain Beach Boys songs, including California Girls, Good Vibrations, Wouldn’t It Be Nice, Darlin and Help Me Rhonda, which were included on the Good Vibrations CD.
121. Defendants knew of the existence of plaintiff’s contract with Rondor Music entitling him to songwriting royalties on certain Beach Boys songs, including California Girls, Good Vibrations, Wouldn’t It Be Nice, Darlin and Help Me Rhonda, which were included on the Good Vibrations CD.
122. Defendants intentionally engaged in the aforesaid acts or conduct relating to the promotion of the Smile CD and the giveaway of the Good Vibrations CD, which prevented Rondor from performing its contract with plaintiff requiring payment of appropriate songwriting royalties to plaintiff; and/or that prevented Rondor from informing, disclosing and acquiring consent from the plaintiff for the exploitation of his songs pursuant to its established policies and course of conduct to do so. The combined actions of the defendants caused performance of the contract between Rondor and plaintiff to become impossible to perform by Rondor; diluted the royalty stream plaintiff was contractually entitled to; and said conduct caused the contract to become burdensome and expensive. In particular, defendant, Wilson, in concert with the other defendants, specifically The Mail on Sunday and Wilson’s agents, employed a scheme to perpetrate a fraud on Rondor, plaintiff and BRI by filing a false application to Rondor for a license to use the plaintiff’s songs under the guise of a “cover-mount” license. Among numerous restrictions required for a “cover-mount” license are (a) that the “work” being “promoted” and the “work” being licensed as a “cover-mount” are the same; (b) That the “work” licensed not be in excess of 10 minutes; and that no audio-visual material be used. Here, all of these restrictions were breached in the fraudulent scheme perpetrated by the defendants in order to interfere with plaintiff’s contract with Rondor. Upon information and belief, based upon various emails between Rondor and defendant Wilson’s agents, Rondor was deceived by the application for a cover-mount license.
123. Defendants intended preventing plaintiff from performing his contract with Rondor to obtain songwriting royalties or that caused performance under the contract to be more expensive or burdensome.
124. Such acts or conduct by defendants were a cause of damage to plaintiff.
SIXTEENTH CAUSE OF ACTION
Intentional Interference with Prospective Economic Advantage
AGAINST ALL DEFENDANTS AND DOES 1-50
125. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
126. Economic relationships existed between (1) plaintiff and BRI, and (2) plaintiff and Rondor Music, containing probable future economic benefits or advantages to plaintiff.
127. Defendants knew of the existence of these two relationships.
128. Defendants intentionally engaged in wrongful conduct as alleged above concerning the promotion of the Smile CD and the giveaway of the Good Vibrations CD, and said conduct was designed to interfere with or disrupt plaintiff’s relationships with BRI and Rondor.
129. These two economic relationships with BRI and Rondor were actually interfered with or disrupted.
130. The wrongful conduct of defendants in promoting the sale of the Smile CD, which was designed to interfere or disrupt plaintiff’s relationships with BRI and Rondor caused damage to plaintiff.
SEVENTEENTH CAUSE OF ACTION
Negligent Interference with Prospective Economic Advantage
AGAINST ALL DEFENDANTS AND DOES 1-50
131. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
132. Economic relationships existed between (1) plaintiff and BRI, and (2) plaintiff and Rondor Music, containing probable future economic benefits or advantages to plaintiff.
133. Defendants knew of the existence of these two relationships.
134. Defendants engaged in wrongful conduct as alleged above concerning the promotion of the Smile CD and the giveaway of the Good Vibrations CD.
135. It was reasonably foreseeable that this wrongful conduct would interfere with or disrupt this economic relationship if defendants failed to exercise due care.
136. Defendants were negligent in their conduct relating to the promotion of the Smile CD and the giveaway of the Good Vibrations CD, that is, defendants failed to exercise due care in the promotion of the Smile CD and the giveaway of the Good Vibrations CD.
137. These two economic relationships with BRI and Rondor were actually interfered with or disrupted.
138. The above described conduct relating to the promotion of the Smile CD and the giveaway of the Good Vibrations CD caused plaintiff damage, namely, plaintiff lost in whole or in part the economic benefit or advantage from the economic relationship.
EIGHTEENTH CAUSE OF ACTION
Civil Conspiracy
AGAINST ALL DEFENDANTS AND DOES 1-50
139. Plaintiff incorporates into this cause of action the allegations contained in each and every preceding paragraph of this Complaint as if the same were set out at length herein.
140. Plaintiff is informed and believes, and thereon alleges that beginning sometime in 2004, defendants and each of them, knowingly and willfully conspired and agreed among themselves to implement and/or maintain an international advertising and marketing scheme to promote the release of The Beach Boys’ long-awaited Smile album, at the expense of fellow Beach Boy Mike Love and The Beach Boys corporate entity, BRI. This multimedia promotion misappropriated Mike Love’s songs, likeness, and Beach Boys’ trademark, as well as the Smile album itself, which has been identified with the Beach Boys for over thirty-seven years. The primary means used to implement the scheme was the “give away” of over 2.6 million music CDs entitled “Good Vibrations,” which increased the sale of Brian Wilson’s Smile CD and The Mail on Sunday newspapers, but it has had an adverse effect on the sales and value of the many Beach Boys CDs available for sale in the marketplace.
141. Defendants, in furtherance of this conspiracy, withheld material information from Mike Love about the use of his songs, likeness, name, and trademark to promote giveaway of the Good Vibrations CD, which increased the sale of the Smile CD, The Mail on Sunday newspaper, and BigTime.TV’s services.
142. As a direct and proximate result of the wrongful acts alleged herein, plaintiff’s right to publicity was misappropriated, his copyright and trademark rights were infringed, his settlement and indemnity agreements were breached, and plaintiff’s contractual relationships and prospective economic advantages were interfered with.
143. The acts of defendants, as alleged herein, constituted an intentional conspiracy, agreement, plan, or scheme designed to misappropriate plaintiff’s right to publicity, to infringe on his copyright and trademark rights, to cause the breach of his settlement and indemnity agreements, and to cause his contractual relationships and prospective economic advantages to be interfered with.
144. Defendants’ conspiracy was carried on by the defendants with a willful and malicious and conscious disregard of plaintiff’s rights; therefore plaintiff seeks to recover punitive damages against defendants.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays the court:
FOR THE FIRST AND SECOND CAUSES OF ACTION FOR VIOLATION OF PLAINTIFF’S RIGHT TO PRIVACY:
1. Award plaintiff actual damages according to proof;
2. In the alternative, award plaintiff statutorily mandated minimum damages of $750;
3. Permanently enjoin defendants from misappropriating plaintiff’s name, image, or likeness;
4. Award plaintiff his attorneys’ fees according to proof or as required and/or permitted by statutes including, but not limited to, Civil Code section 3344;
5. Award plaintiff his costs; and
6. Grant such other and further relief as the court deems just and proper.
FOR THE THIRD CAUSE OF ACTION FOR BRIAN WILSON’S BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING REGARDING SETTLEMENT AGREEMENT:
1. Award plaintiff actual damages according to proof;
2. Award plaintiff his costs; and
3. Grant such other and further relief as the court deems just and proper.
FOR THE FOURTH CAUSE OF ACTION FOR INDEMNITY UNDER WRITTEN INDEMNITY AGREEMENT:
1. Award plaintiff actual damages according to proof;
2. Award plaintiff his costs; and
3. Grant such other and further relief as the court deems just and proper.
FOR THE FIFTH CAUSE OF ACTION FOR DECLARATORY RELIEF ON THE SETTLEMENT AND INDEMNITY AGREEMENTS:
1. A declaration of the court that plaintiff is entitled to Brian Wilson and his agents’ performance under the aforesaid settlement and indemnification agreements, and that Brian Wilson and his agents are obligated to provide such performance as set forth in the aforesaid settlement and indemnification agreements;
2. Award plaintiff reasonable attorneys’ fees and costs pursuant to the attorneys’ fee provision of the Agreement of Indemnification.
FOR THE SIXTH CAUSE OF ACTION FOR BRIAN WILSON’S BREACH OF FIDUCIARY DUTY:
1. Declare and decree that the The Mail on Sunday’s promotion of Brian Wilson’s Smile CD was a breach of Brian Wilson’s fiduciary duty to Mike Love;
2. Direct Brian Wilson to exercise his fiduciary duty to obtain remuneration from defendant

 

I thought Ed posted.

mud-

 

I think we can officially say bye-bye to a 40th anniversary Smile box...not that everyone else hadn't already.

 

No way--my stuff sometimes makes sense...

Someone find the forum barristers for a translation...

 

Very sad.

 

There are tons of 'em in here. I'll wait for the Cliff Notes version or the film.

mud-

 

Mike Love wants what he believes is his share of the money...

Bob

 

I found this amazing (the italics are mine):

"After Carl’s death in 1998, Alan Jardine announced in the entertainment media that he no longer wished to tour with The Beach Boys; and Mike Love announced privately within BRI that he would no longer tour with Alan Jardine because of Jardine’s long and well documented history of mental and emotional problems, failure to perform, and abusiveness toward other band members."

To me, Al always came off as the most centered member of the group. This sounds slanderous to me.

I can see how Mike could be pissed at the giveaway of over 2 million CDs containing songs he co-wrote, but the rest of the complaints are mean spirited and filled with outrageous fantasy. I swear, it sounds like Mike has convinced himself that he was the creator and artistic driving force behind the Beach Boys.

I wish someone would remind Mike that he may have been the primary reason Brian abandoned Smile in 1967.

 

Gawd, what a travesty.

 

Mike Love should be glad he was in the Beach Boys. He doesn't ride that gravy train, he's an ex-jock running for a city council seat..

 

I wonder if Al could sue Mike for the statements made in this lawsuit. Lawyers love the Beach Boys, the most litigious band in history.

Hey, why is the Dennis estate not a shareholder in BRI?

 

I agree! You did ask for a synopsis...

Bob

 

And nobody does it as well as you, Bob!

 

I find it pathetic that Mike Love feels the need to bash Al Jardine in this fashion. I am not aware of any "well documented history of mental and emotional problems" concerning Al Jardine.

 

Al and Brian didn't seem to have mental and emotional problems until they hung out with Mike.

 

BRI bought out their share in the mid/late '80s.

 

Wouldn't it be nice if the parties involved could get some good vibrations and settle this matter out of court? That would make me smile.

 

Forget the suit! What about the free CD? Is is stereo, mono, duophonic, or what? Does it have variations? Is it re-EQ'ed and compressed?

 

It seems to me that Mike Love must have graduated from the Yoko Ono school of "How to Re-Write History."

 

Can this be right?

... and Alan Jardine was not a member of the touring band from 1962 until 1965...

I know David Marks took his place for a time, but I didn't think it was nearly that long. What about all the performance footage on TV of 1964-vintage songs (e.g. "Don't Worry Baby") with Al. What about "The T.A.M.I. Show"? Wasn't Al in that too?

I'm not The Beach Boys historian that many here are, but this doesn't sound right to me. The first reference I can grab close at hand is Whitburn, who says David Marks was a Beach Boy from March 1962 to March 1963. Could the year given in the lawsuit be a typo (charitable explanation), or a deliberate attempt to deceive?

 

He makes Ono look like a piker!

 

Or maybe the McCartney school...

(And before anyone jumps on me, I'm not saying that McCartney is a hack of limited talent like Love).

 

I think, it is the opposite. Brian has said many times that he won't allow a Smile box. But now with this lawsuit, a Smile box could be the necessary settlement. All BRI parties could profit from a Smile box set, it would promote the Beach Boys name and maybe the selling of the back catalgoue, and in the eyes of Mike Love, it could "correct" the impression that Smile was solely a Brian Wilson project.

The article in the first post is full of inaccuracies. The Wilsons' father's name was Murry, not Murray, for example. And what about this nonsense????

 

It's not an article, it's a legal document prepared by Mike's lawyers, isn't it? Presumably the source of any errors or distortions (aside from misspellings) is Mike himself.

 

Here's one of my faves:

5. In the same time frame following Carl Wilson’s death, Alan Jardine misappropriated the trademark, bastardized The Beach Boys name, altered the traditional Beach Boys harmonies, line-up and music, defamed Mike Love and The Beach Boys in the media, and then overtly infringed upon the trademark by using it to perform live concerts while duping ticket-buyers into believing it was the BRI-licensed Beach Boys. Jardine wreaked havoc in the marketplace causing BRI to sue for a permanent injunction which was granted and then upheld by the Ninth Circuit in Brother Records, Inc. v Jardine, 318 F.3d 900 (9th Cir. 2003).

It's written like it's a script to some high courtroom drama. HE WREAKED HAVOC!!!!! HE DUPED THE PEOPLE!!!!! HE DEFAMED MIKE LOVE!!!!!!

C'mon, Mike....you've done pretty well defaming yourself. You don't need any help.

(Oh! BTW.....The thread title? Brilliant! Wht didn't I ever make the connection when all of this happened? The Christmas season has left my mind in an uproar!)