Ernest McCullar
5025 S. Ash Suit B-1
Tempe, Arizona 85202
Wiredforsound.1@juno.com
(602) 413-7025
Defendant Pro Se
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Slep-Tone Entertainment ) Case No. CV091462 PHX MHM
And )
Sound Choice Studios Inc. )
Plantiff )
)
Vs. )
)
Ernest McCullar dba Wired For Sound, )
Et all )
Defendant )
__________________________________)
Motion to Dismiss
Defendant Ernest McCullar respectfully presents the following facts and statements as a Motion to Dismiss.
For many years, defendant has purchased, advertised, endorsed and prioritized Plaintiffs’ karaoke CDGs. Defendant instructed his host to play Sound Choice as first priority above other manufactures or different versions of the same song unless the singer specifically requested a different manufacture. Today, this is no longer the case as the plaintiff continues to effectively destroy the goodwill they have worked so hard to build on a national level. During the past year, Plaintiff has filed 5 Federal Lawsuits against well over 100 service providers and venues they believe to have deep pockets, with the boosting claim that they are just getting started. Piracy does exist and it is blatantly advertised daily on the Internet, along with e-mails and phone numbers for easy contact. On any given day, at least a dozen can be found on Craig’s List in the Los Angeles area alone. Why then are they not the target of Plaintiffs efforts to “level the playing field”? The reason is money. Why was I selectively chosen and labeled as a pirate with demands to pay $40,000 in settlement, yet Plaintiff has never seen or asked to see any one of my 7,000 karaoke disks? Again, the answer is money! Defendant is willing to present to this Court at any time all karaoke CDs and songbooks for each system. Defendant is willing to do all shows directly from original CDGs, without computers while this case is active. Defendant is willing to do all shows without Sound Choice at all. Defendant would rather sell off all Sound Choice CDGs and purchase karaoke CDGs from Stellar Records with the Courts Permision.
1.) Grounds For Dismissal
Technically, the Plaintiff no longer derives any significant income from manufacturing karaoke disks. They are now primarily in the business of churning out multiple Federal lawsuits and profiteering from threats and intimidation. These profits begin almost immediately after the legal papers are filed. There is no need for conclusion or final settlement. There is no need for this lawsuit to ever come to the light of a courtroom. As long as it is active, this lawsuit is a money machine that keeps generating profits for the Plaintiff. By filing a few papers in 5 Federal lawsuits, paying some small fees and making unproven accusations of trademark infringement over 100 times in less than a year, Plaintiffs have effectively cast a large financial net, “fishing” and creating a money stream through legal threats and intimidation. This is not justice; it is an abuse of our legal system for financial gain.
2.) Circumventing U.S. Copyright Law
Plaintiff opened their Australian website to sell karaoke songs via the Internet. The Sound Choice Library has 4,000 more songs available on this website than on their USA library. They cannot sell these files legally in the United States without violating U.S. copyright laws, however, it isn’t illegal to sell them via the Australian website. Plaintiff has dirty hands because sales of these files cheat the artists and publishers who legally own the copyrights. Plaintiff presents themselves as a manufacture fighting hard against piracy when in reality they are setting up operations in Australia to circumvent U.S. copyright laws; “Calling the kettle black” as the saying goes.
3.) Abuse of Copyrights Are Also An Abuse Of Trademark
How many illegal tracts has Sound Choice distributed to the unknowing public? In the past, Sound Choice would manufacture and distribute karaoke CDs with only assumed or verbal consent, as was the case of the Eagles SCSP8125. Defendant legally purchased this and many other Sound Choice disks in which the rights have expired for the Plaintiff, yet the Eagles CD is and always has been illegal. No rights were ever granted, yet the logo or trademark is displayed on the CD, the jewel box, and every song track contained within that CD. (Sound Choice CDs of Alanis Morissette have also been pulled off the shelves while Defendant was shopping in a karaoke store in Phoenix.) Recently in a public web-site “DJ Talk” Mr . Kurt Slep warned Defendant Ernest McCullar that I had better own 10 of these illegal disks to protect myself in this lawsuit; asserting incorrectly that I had 10 rigs and he had every right to sue me for displaying his trademark on the graphics of each song track. Defendant Ernest McCullar has the right to see the contracts granting Sound Choice the rights to every single tract that they are claiming damages for in this lawsuit. Without a thorough examination of the Defendants’ library beforehand and a cross-comparison to identify specifically which disk is unaccountable for the song associated with accusations of infringement, the Plaintiffs’ claim is strictly a matter of opinion and baseless of any wrongdoing.
Unlike many other industries, karaoke disks require that both the copyrights and trademarks to be co-dependent in a symbiotic relationship. Both are necessary for a karaoke disk to be legally valid as in the case of the Eagles SCSP8125. They cannot function separately.
“It is essential to the existence of a trademark that it be attached or affixed to a vendible commodity; indeed, a trademark does not exist apart from the particular article or goods on which it is used. It must have a practical or operative existence, and in the strict sense of the term it is applicable only to a vendible article on which it is in some manner affixed or represented as a symbol to indicate the origin or ownership on the article on which it is placed.” –74 AM JUR 2d, 711
As illustrated in the example above (SCSP 8125), copyrights act as the actual “content” of a karaoke disk, which is a necessary component to give validity to the trademark. They cannot be separated as with SCSP8125 “The Eagles”. Mr. Slep has no standing to sue me or any other defendant for displaying his logo trademark from the Eagles disk SCSP8125 when they do not own the copyrights and never have. The legal definition of trademark requires it be affixed to the article or content to show the origin of the product and to protect the public from any type of confusion. Without the copyright, the trademark means nothing.
An abuse of the copyrights is also parallel and an abuse of the trademark as well. Defendant is entitled to see original dated agreements by Sting Ray Records allowing Sound Choice use of the copyrights to launch 5 Federal lawsuits to give validity to the trademarks.
Plaintiff sold all but 49 tracks to Sting Ray Records in 2007. As an attorney the legal department of Sting Ray Records Ms. Annie J. Francoeur informed Defendant in October 2009, that no agreements were in place between Sting Ray and Sound Choice allowing any use of the copyrights.
“… I wish to re-confirm that there is no deal in place between Stingray and Sound Choice regarding the possibility for Sound Choice to claim copyrights on the content they sold to us in 2007.”… “Stingray has indeed purchased all music rights from Sound Choice in 2007 and now owns and/or controls all related copyrights. Sound Choice therefore has no right or authority to claim or sue any third party for copyright infringements, and is certainly not acting on Stingray’s behalf in this regard. On 3/02/10 Ms. Francouer changed her position 180 degrees most likely because Vice President of Sting Ray Records is Derek Slep and he most likely reprimanded her for responding to Defendants’ inquiries. Her new response now admits a “deal in place”. The 1st e-mail was straightforward and truthful; no deal of loaning copyrights was in place. Without the copyrights, the Sound Choice trademarks were absent of content rendering the trademarks invalid when Sound Choice conducted their investigations on March 27th of 2009.
4.) Abuse Of Our Legal System
Plaintiff sent Ernest McCullar an e-mail literally bragging how he was going to abuse the legal system by placing an injunction against Ernest McCullar preventing use of computers and the implication of having Plaintiffs’ local contacts take over Defendants’ karaoke shows as a reward for their service as local representatives of Sound Choice, namely Eric Godfrey, owner of Starz Productions, Alan Malarky owner of AAA Entertainment, and Bobby Brooks owner of UR Entertainment. Plaintiff continued to brag how he would then begin churning the attorney of Ernest McCullar with meaningless requests during the disclosure phase of this lawsuit “…so there goes the meter”. At $400 per hour, Defendant cannot afford an IP attorney and financial churning abuse on the part of the Plaintiff.
Methodology
Plaintiff solicited the assistance of 3 the largest karaoke service providers in Arizona to act as informants. All 3 are in direct competition with Defendant. These “informants” were promised an enticing reward for their participation. Defendant would most likely loose one or more karaoke venues under the negative stigma of a Federal lawsuit allowing Plaintiffs’ “informants” to take over the venue as a significant financial reward for their service. As the largest karaoke service providers in Arizona, these “informants” also claim Sound Choice endorsements and association, claiming the rightful cause of putting karaoke pirates out of business. Once the accused Defendant looses his venue, the “informants” can take over the venue offering Mafioso Protection to the bar and restaurant owners that they will no longer be harassed with threatening letters targeting their liquor license. They will no longer be threatened with exorbitant fines (of hundreds of thousands of dollars) from Sound Choice.
Most importantly concerning the issue of methods employed by the Plaintiff, Nation wide, nearly every karaoke show provides a means for singers to bring their (legally purchased) personal karaoke CDs to shows and have the host play them from the karaoke rig. The singer may feel more comfortable using their own CD they have practiced singing at home. Given the circumstances that the Plaintiff and his “informants” have their own personal interest to eliminate or discredit their competition, what would prevents any one of these “informants” or employees of the “informants” from approaching the Defendants’ host unknowingly, and requesting him to play a rare Sound Choice CD or one disk containing songs that are not in the hosts’ songbook. It is therefore impossible for any Defendant to protect himself from accusations of Trademark Infringement given this methodology employed by the Plaintiff.
Defendant argues the methodology employed by the Plaintiff for sighting Trademark infractions is flawed, bias, and self-serving. No attempt is made to control significant variables. The methods employed in no way demonstrate proper empirical research methods and therefore, any resulting conclusion or claim of trademark infringement is nullified and unsupportive.
Given these facts, this lawsuit is unwarranted and wasteful of the Court’s time and taxpayers’ money. Defendant Ernest McCullar respectfully submits this motion for dismissal, 5/17/10.
Copies of this document will be mailed to:
James Harrington, attorney for the Plaintiff.
James Gary Linder
Esteban Escobedo
DanielLouis Leimone
