ANTHONY J. SYLVESTER
CRAIG L. STEINFELD
RIKER, DANZIG, SCHERER, HYLAND & PERRETTI LLP
Headquarters Plaza
One Speedwell Avenue
Morristown, NJ 07962-1981
Tel. (973) 538-0800
Fax (973) 538-1984
BARRY G. WEST, SB# 55365
GAIMS, WElL, WEST & EPSTEIN LLP
1875 Century Park East, 12th Floor
Los Angeles, California 90067-2530
Tel. (310) 553-6666
Fax (310) 277-2133
Attorneys for Plaintiff
Gia M. Prima, individually and as beneficiary and executrix of the Estate of Louis Prima UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA CASE NO. 99-13064 WMB (SHx) SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL HON. WILLIAM MATTHEW BYRNE, JR. GIA M. PRIMA, individually and as beneficiary and executrix of the Estate of Louis Prima,
Plaintiff, vs. DISNEY ENTERPRISES, INC., a Delaware corporation; BUENA VISTA HOME ENTERTAINMENT, INC., a California corporation; ABC, INC., a New York corporation; WALT DISNEY PICTURES AND TELEVISION. INC., a California corporation; and DISNEY ENTITIES 1-20,
Defendants. Plaintiff Gia M. Prima, individually and as beneficiary and executrix of the Estate of Louis Prima, by way of Second Amended Complaint against defendants Disney Enterprises, Inc., Buena Vista Home Entertainment, Inc., ABC, Inc., Walt Disney Pictures and Television, Inc. and "Disney Entities 1-20", says: JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. The amount in controversy exceeds the sum of $75,000, exclusive of interest and costs, and there is complete diversity of citizenship between Plaintiff and all Defendants. 2. Venue is proper pursuant to 28 U.S.C. § 1391(a) and (c). NATURE OF THE ACTION 3. This is an action to (i) recover damages and/or contractual royalty payments resulting from Defendants' manufacture, sale and distribution of videocassette and digital video disc ("DVD") recordings of the "Jungle Book" animated movie to consumers for use as home entertainment and (ii) prohibit the future sales and distribution of such recordings. Pursuant to a certain agreement, Louis Prima granted certain rights to Walt Disney Productions in connection with his performance in the "Jungle Book". That grant of rights to Walt Disney Productions, without any further compensation obligation to Louis Prima, was limited to the reproduction, exhibition and/or transmission of Louis Prima's work in the "Jungle Book" for public viewing by way of theatrical exhibition and/or television broadcast and did.. not include the right to sell and distribute videocassette, DVD or other recordings of the "Jungle Book" for private, home entertainment uses. Moreover, to the extent that Walt Disney Productions (and/or its successors) was granted the right and license to sell and distribute Louis Prima's work in the "Jungle Book" to consumers for use as home entertainment, Louis Prima's agreement with Walt Disney Productions provided for the payment of royalties. This action seeks (i) damages caused by Defendants' unauthorized sale and distribution of home videocassettes and 2 DVDs containing Louis Prima's work in the "Jungle Book" and a prohibition on future sales, and/or (ii) the payment of royalty compensation for all sales and distribution of the "Jungle Book" home videocassettes and DVDs and a declaration that Defendants are obligated under Louis Prima's agreement with Walt Disney Productions to pay royalties for all future sales and distribution of recordings manufactured by any method and intended primarily for use as home entertainment. THE PARTIES 4. Plaintiff Gia M. Prima ("Plaintiff') is a citizen and resident of the State of New Jersey. 5. Plaintiff is the successor-in-interest and beneficiary of all rights and privileges of the late Louis Prima and executrix of the Estate of Louis Prima. Louis Prima was a world-renowned and award winning singer, songwriter, recording artist and entertainer. In view of his stature as a popular recording artist and entertainer, Louis Prima's voice, singing style and manner of musical presentation including his style of musical arrangement was, and at all times relevant hereto has been, a significant attribute of Louis Prima's professional identity, the cornerstone of his livelihood and a valuable asset. 6. Defendant Disney Enterprises, Inc. ("Disney Enterprises") is a corporation duly organized and existing under the laws of the State of Delaware, with its principal place of business located at 500 South Buena Vista Street, Burbank, California, and is a wholly-owned subsidiary of The Walt Disney Company. 7. Disney Enterprises was formerly known as and/or is a successor to Walt Disney Productions. (Disney Enterprises and Walt Disney Productions are hereinafter referred to together as "Disney".) 8. Defendant Buena Vista Home Entertainment, Inc. ("BVHE") is a corporation duly organized and existing under the laws of the State of California, with its principal place of business located at 350 South Buena Vista Street, Burbank, California, and is a wholly-owned subsidiary of Disney Enterprises. 9. BVHE was formerly known as and/or is a successor to Buena Vista Home Video, Inc. 10. Defendant ABC, Inc. ("ABC") is a corporation duly organized and existing under the laws of the State of New York, with its principal place of business located at 77 W. 66th Street, New York, New York, and is a wholly-owned subsidiary of Disney Enterprises. 11. ABC is a successor by merger to Buena Vista Pictures Distribution, Inc. 12. Defendant Walt Disney Pictures and Television ("Walt Disney Pictures") is a corporation duly organized and existing under the laws of the State of California, with its principal place of business located at 500 S. Buena Vista Street, Burbank, California, and is a wholly-owned subsidiary of Disney Enterprises. 13. Defendants "Disney Entities 1-20" are various as yet unidentified corporate subsidiaries of The Walt Disney Company and/or Disney Enterprises. 14. Upon information and belief, Disney Enterprises is, and at all times relevant hereto was, engaged in the business of family entertainment including, inter alia the licensing of the reproduction of Disney characters and/or the creation, production, exhibition, transmission and distribution of animated motion pictures. 15. Upon information and belief, BVHE is, and at all times relevant hereto was, engaged in, inter alia, the business of sales, manufacture and distribution of motion pictures on pre-recorded videocassettes, home videos and DVDs. 16. Upon information and belief, ABC is, and at all times relevant hereto was, engaged in, inter alia, the business of the distribution of films and motion pictures for Disney through its Buena Vista Pictures Distribution division. 17. Upon information and belief, Walt Disney Pictures is, and at all times relevant hereto was, engaged in, inter alia, the business of the production of films and animated motion pictures for Disney. 18. Upon information and belief, "Disney Entities 1-20" are, and at all times relevant hereto were, one or more subsidiary corporations of The Walt Disney Company and/or Disney Enterprises and engaged in, inter alia, the business of the creation, production, exhibition, transmission and distribution of animated motion pictures, sales, manufacture and distribution of motion pictures on pre-recorded videocassette, home videos and DVDs, the distribution of films and motion pictures for Disney, and/or the production of films and animated motion pictures for Disney. (Disney Enterprises, BVHE, ABC, Walt Disney Pictures and "Disney Entities 1-20" are hereinafter from time to time collectively referred to as the "Disney Defendants".) FACTUAL ALLEGATIONS 19. On or about January 25, 1965, Louis Prima and Disney entered into a written agreement (the "Agree ment") in connection with the "Jungle Book', 16 which was an animated "motion picture photoplay" being produced by Disney for theatrical exhibition. 20. As memorialized in the Agreement, Louis Prima agreed to render certain artistic services for the "Jungle Book". Under the Agreement, said services were to consist of "the recording on film (soundtrack) of... one musical composition for reproduction and/or transmission by any means or methods now known or which may hereafter be devised or developed." 21. By virtue of the fact that the "Jungle Book" is a completely animated photoplay, Louis Prima never visually appears therein and his performance is solely vocal and/or musical and, therefore, all aspects of his compensation relate either to such vocal/musical performance or to the exploitation of such vocal/musical performance as embodied in the soundtrack of the movie. 22. Under the Agreement, Louis Prima also granted to Disney certain rights in his artistic services and performance in the "Jungle Book" motion picture. Paragraph 6 of the Agreement states, in relevant part:
[Louis Prima] hereby grants to [Disney] the right to broadcast, by radio or television, either on sustaining or sponsored programs, or otherwise, from any film, tapes, or records made by [Louis Prima] hereunder or from any recordings or other reproductions made therefrom, for the purpose of advertising, publicizing and exploiting said photoplay.
24. Paragraph 8 of the Agreement states, in relevant part:
"[Louis Prima]...grant[s] to [Disney].. .all rights of every kind and character whatsoever in and to all recordations of said musical composition.., and the unlimited right to reproduce and/or transmit the same..., and any recordations or reproductions thereof, in any manner whatsoever, in connection with [Disney's] said photoplay, together with the right to use [Louis Prima's] name, likeness [etc.]...for advertising, publicizing and exploiting the same... .The said rights to reproduce and transmit shall include, but shall not be limited to, motion pictures produced and or exhibited with and/or accompanied by sound and/or voice recording, reproducing and/or 24 transmitting devices, radio devices, television and all 25 other improvements and devices which hereafter may be used in connection with the production, exhibition and/or transmission of any present or future kind of motion picture productions.
25. Paragraph 9 of the Agreement states, in relevant part:
"[Disney]...shall be entitled to and shall own (in addition to the services hereunder) all the results and proceeds of anything and everything produced by [Louis Prima] hereunder (including all rights throughout the world, of production, manufacture, recordation and reproduction, by any art or method, and of copyright, trademark and/or patent) whether such results and proceeds consist of literary, dramatic, musical, motion picture, mechanical, manual or any other form of work, theme, idea, composition, creation, utility or product, and [Disney] shall have the right to use the same or any part thereof as and in any way [it] desire[s] and by any means and in any media; and [Louis Prima] do[es] hereby assign and transfer to [Disney]...all the foregoing, without reservation, condition or limitation.
26. In consideration of Louis Prima's artistic services and his grant to Disney of the right to use such services in connection with the production, exhibition and/or transmission of the "Jungle Book" motion picture in theaters or by way of television, Disney agreed to pay to Louis Prima, and Louis Prima agreed to accept, $1,500 per day for each day of services rendered. This grant of rights by Louis Prima only gave Disney the exclusive right to exploit the "Jungle Book" motion picture photoplay in any format for public viewing. It did not give Disney the right to sell and distribute videocassette, DVD or other recordings of the "Jungle Book" to consumers for use as home entertainment without any additional compensation to Louis Prima. 27. Louis Prima also granted to Disney, in exchange for certain additional compensation, the right and license to reproduce his artistic performance in the "Jungle Book" onto recordings for commercial sale and distribution for use 6 primarily as home entertainment. Paragraph 16 of the Agreement states:
In addition to the rights granted to [Disney] elsewhere in this agreement, [Louis Prima].. .grant[s] to [Disney] the rights and license to reproduce the band's performance from the soundtrack or tracks onto commercial phonograph records and to sell and distribute such phonograph records pursuant to the terms and conditions contained in "Exhibit A"....
28. The Agreement included an "Exhibit A", entitled "Terms and conditions applicable to the manufacture, sale and distribution of phonograph recordings derived from soundtrack material." 29. As set forth in Paragraph 2 of Exhibit A to the Agreement, in consideration of the rights granted by Louis Prima in Paragraph 16 of the Agreement, Disney agreed to pay a royalty to Louis Prima "computed on ninety percent (90%) of net sales, of five percent (5%) of the net price of records produced" and with "respect to each such record delivered through, or as part of, a record club or direct mail offering, said royalty shall be reduced to two and one-half percent (2 1/2%)..." 30. The terms "records", "phonograph records" and "recordings" are defined in Paragraph 1(d) of Exhibit A to "include all forms of recording and reproduction manufactured by any method and intended primarily for use as home entertainment." 31. As set forth in Paragraph 4 of Exhibit A, Disney agreed to simultaneously render to Louis Prima a statement of accrued royalties earned by Louis Prima under the Agreement and the royalty payments due to Louis Prima "within 60 days after March 31 and September30 of each year during which such records...were sold." 32. Except for Paragraph 16 and Exhibit A, no other provision of the Agreement refers to or in any way contemplates the "sale" and/or "distribution" of Louis Prima's work in the "Jungle Book" for use as home entertainment.
33. Disney and Louis Prima agreed in Paragraph 16 and Exhibit A of the Agreement that Louis Prima would be entitled to participate in the profits derived from the sale and distribution of "recordings" containing reproduction of his performance in the "Jungle Book". 34. Upon information and belief, one or more of the Disney Defendants are successors to Disney's rights and obligations under the Agreement and Exhibit A thereto. 35. Upon information and belief, the reproduction rights granted to Disney under the Agreement and Exhibit A thereto were assigned to one or more of the Disney Defendants. 36. Upon information and belief, Disney's royalty obligations under the Agreement and Exhibit A thereto were assigned by Disney to one or more of the Disney Defendants. A. Sale of Videocassette Recordings
37. Upon information and belief, in or about 1991, one or more of the Disney Defendants released and began selling and distributing videocassette recordings of the "Jungle Book" to consumers for private use as home entertainment. 38. Upon information and belief, in or about October 1997, one or more of the Disney Defendants again released and continued selling and distributing videocassette recordings of the "Jungle Book" to consumers for private use as home entertainment. 39. Upon information and belief, one or more of the Disney Defendants have from time to time between 1991 and the present, continued to sell and distribute videocassette recordings of the "Jungle Book" to consumers for private use as home entertainment. 40. The videocassette recordings of the "Jungle Book" that have been sold and distributed by one or more of the Disney Defendants to consumers for private use as home entertainment all contain and include Louis Prima's performance as reco rded and included in the original soundtrack to the theatrical movie release. B. Royalty Statements and Payments 41. Since the execution by Disney and Louis Prima of the Agreement and Exhibit A thereto, one or more of the Disney Defendants have from time to time 12 rendered to Louis Prima, and, thereafter, Plaintiff semi-annual statements of accrued royalties earned by Louis Prima for recordings of his performance in the "Jungle Book". 42. The semi-annual statements of accrued royalties that were provided to Louis Prima and, thereafter, Plaintiff purported to reflect all of the different recordings containing Louis Prima's performance in the "Jungle Book" that one or more of the Disney Defendants sold and distributed to consumers for use as home entertainment. 43. The semi-annual statements of accrued royalties that were provided to Louis Prima and, thereafter, Plaintiff did not specifically identify the types of "recordings" (e.g., tapes, compact discs, videotapes) for which royalties were earned. Instead, the types of recordings were identified only by "product numbers", which were known only to one or more of the Disney Defendants. 44. The use of the aforesaid "product numbers" concealed from Louis Prima and, thereafter, Plaintiff precisely what recordings were and were not included in the statements. 45. Simultaneously with the statements referred to in the preceding paragraphs, Louis Prima, and, thereafter, Plaintiff received certain royalty payments as reflected on the statements and earned by Louis Prima for his performance in the "Jungle Book". 46. The statements of accrued royalties earned and the corresponding royalty payments did not include reports of or royalty payments earned by Louis Prima from the sale and distribution by one or more of the Disney Defendants of 8 videocassette recordings of the "Jungle Book" to consumers for use as home entertainment.
47. Louis Prima and, thereafter, Plaintiff were never advised in such statements of the number of home-use videocassette recordings of the "Jungle Book" that were and continue to be sold and distributed by one or more of the Disney Defendants. C. "Clip" Agreements 48. In or about December 1987, Walt Disney Pictures requested Plaintiffs consent, agreement and authorization to use videotape clips of Louis Prima's performance in the "Jungle Book" in connection with a home video entitled "Disney's Sing-Along Songs/The Bear Necessities". In this regard, Walt Disney Pictures prepared and sent to Plaintiff a "CLIP AGREEMENT/AUTHORIZATION TO USE PERFORMANCE" by which Plaintiff granted to Walt Disney Pictures a non-exclusive license to use Louis Prima's performance as embodied in videotape clips (both the audible and visual portions) from the "Jungle Book" in a home video entitled "Disney's Sing-Along Songs/The Bear Necessities". 49. In consideration for Plaintiffs grant of the non-exclusive license described in Paragraph 48 above, Walt Disney Pictures agreed to pay to Plaintiff the sum of $379.00. 50. In or about December 1994, Walt Disney Pictures requested Plaintiffs consent, agreement and authorization to use film or video clips of Louis Prima's performance in the "Jungle Book" in connection with a documentary with the working title "Frank and Ollie". In this regard, Walt Disney Pictures prepared and sent to Plaintiff a "CLIP AGREEMENT/AUTHORIZATION TO USE PERFORMANCE" by which Plaintiff granted to Walt Disney Pictures a non-exclusive license to use Louis Prima's performance as embodied in film or video clips (both the audible and visual portions) from the "Jungle Book" in a documentary with the working title "Frank and Ollie". 51. In consideration for Plaintiffs grant of the non-exclusive license described in Paragraph 50 above, Walt Disney Pictures agreed to pay to Plaintiff the sum of $504.00. 52. In or about February 1996, Walt Disney Pictures requested Plaintiffs consent, agreement and authorization to use film or video clips of Louis Prima's performance in the "Jungle Book" in connection with "one or more Disney Institute classes". In this regard, Walt Disney Pictures prepared and sent to Plaintiff a ‘CLIP AGREEMENT/AUTHORIZATION TO USE PERFORMANCE" by which Plaintiff granted to Walt Disney Pictures a non-exclusive license to use Louis Prima's performance as embodied in film or video clips (both the audible and visual portions) from the "Jungle Book" in connection with "one or more Disney Institute classes 53. In consideration for Plaintiffs grant of the non-exclusive license described in Paragraph 52 above, Walt Disney Pictures agreed to pay to Plaintiff the sum of $522.00. 54. In or about April 1997, Walt Disney Pictures requested Plaintiffs consent, agreement and authorization to use film clips of Louis Prima's performance in the "Jungle Book" in connection with a home video entitled "Best of Sing-Along Songs, Volume 2: The Middle Years". In this regard, Walt Disney Pictures prepared and sent to Plaintiff a "CLIP AGREEMENT/AUTHORIZATION TO USE PERFORMANCE" by which Plaintiff granted to Walt Disney Pictures a non-exclusive license to use Louis Prima's performance as embodied in film clips (both the audible and visual portions) from the "Jungle Book" in connection with the home video release entitled "Best of Sing-Along Songs, Volume 2: The Middle Years". 55. In consideration for Plaintiffs grant of the non-exclusive license described in Paragraph 54 above, Walt Disney Pictures agreed to pay to Plaintiff the sum of $2,500.00 and all applicable Screen Actors Guild residuals based upon the sale of the "Best of Sing-Along Songs, Volume 2: The Middle Years" video. 56. In or about August 1997, Walt Disney Pictures requested Plaintiffs consent, agreement and authorization to use film clips and behind the scenes footage of Louis Prima's performance in the "Jungle Book" in connection with the home video release of "The Making of the Jungle Book". In this regard, Walt Disney Pictures prepared and sent to Plaintiff a "CLIP AGREEMENT/AUTHORIZATION TO USE PERFORMANCE" by which Plaintiff granted to Walt Disney Pictures a non-exclusive license to use Louis Prima's performance as embodied in film clips and behind the scenes footage (both the audible and visual portions) from the "Jungle Book" in connection with the home video release of "The Making of the Jungle Book", which was included in a "deluxe release" of the "Jungle Book". 57. In consideration for Plaintiffs grant of the non-exclusive license described in Paragraph 56 above, Walt Disney Pictures agreed to pay to Plaintiff the sum of $2,500.00 and all applicable Screen Actors Guild residuals based upon the sale of "The Making of the Jungle Book" video. D. Sale of DVD Recordings 58. Upon information and belief, in or about November 1999, one or more of the Disney Defendants released to the public and began selling and distributing DVD recordings of the "Jungle Book" to consumers for private use as home entertainment. 59. Upon information and belief, one or more of the Disney Defendants have from time to time between November 1999 and the present, continued to sell and distribute DVD recordings of the "Jungle Book" to consumers 6 for private use as home entertainment. 60. The DVD recordings of the "Jungle Book" that have been sold and distributed by one or more of the Disney Defendants to consumers for private use as home entertainment all contain and include Louis Prima's performance. 61. Plaintiff has not received any statements of accrued royalties earned nor any royalty payments earned by Louis Prima from the sale and distribution by one or more of the Disney Defendants of DVD recordings of the "Jungle Book" to consumers for use as home entertainment. 62. Plaintiff has not been advised of the number of DVD recordings of the "Jungle Book" that have been and continue to be sold and distributed by one or more of the Disney Defendants for use as home entertainment. FIRST COUNT (Breach of Contract) 63. Plaintiff repeats paragraphs 1 through 62 as if set forth at length herein. 63. Plaintiff repeats paragraphs 1 through 62 as if set forth at length herein. 64. As set forth hereinabove, Louis Prima entered into an Agreement with Disney to perform a musical composition in the animated motion picture photoplay entitled the "Jungle Book". 65. At the time of the Agreement, the "Jungle Book" motion picture photoplay was to be exploited by Disney only in public theaters and/or by way of public television broadcast. 66. As set forth hereinabove, in accordance with the contemplated theatrical exploitation of the "Jungle Book" and his performance therein, Louis Prima granted certain rights to Disney. 67. As set forth hereinabove and under the terms of the Agreement, the rights granted by Louis Prima to Disney were the rights required by Disney to 6 exploit the "Jungle Book" motion picture photoplay in public movie theaters and/or by way of public television broadcast. 68. Louis Prima performed all of the services required of him under the Agreement with Disney. 69. As set forth hereinabove, under the terms of the Agreement, in exchange for his services and the grant of rights required by Disney to exploit the "Jungle Book" motion picture photoplay in public movie theaters and/or by way of public television broadcast, Louis Prima agreed to accept $1,500 per day for each day of services rendered. 70. As set forth hereinabove, under the terms of the Agreement, the grant of rights from Louis Prima to Disney without any further compensation and/or payment obligation to him were limited solely to the exploitation of Louis Prima's musical composition through theatrical exhibition and television broadcast of the "Jungle Book" motion picture photoplay. 71. As set forth hereinabove, under the terms of the Agreement, the grant of rights from Louis Prima to Disney without any further compensation and/or payment obligation to him were limited solely to the rights required by Disney to exploit the "Jungle Book" motion picture photoplay in public movie theaters and/or by way of public television broadcast. 72. Under the Agreement, Louis Prima did not grant to Disney the right to sell and distribute to consumers for use as home entertainment videocassette, DVD or other recordings of the "Jungle Book" motion picture photoplay that contain and include his performance therein without any further compensation to him. 73. Despite the fact that Louis Prima only granted Disney the exclusive right to exploit his performance in the "Jungle Book" motion picture photoplay in public movie theaters and/or by way of public television broadcast without further compensation to him, one or more of the Disney Defendants have produced, sold and distributed, and upon information and belief, continue to sell and distribute, videocassette and/or DVD recordings of the "Jungle Book" that contain and include Louis Prima's performance therein. 74. One or more of the Disney Defendants have received substantial monies and realized substantial profits from the sale and distribution of videocassette and DVD recordings of the "Jungle Book" that wrongfully contain and include Louis Prima's performance therein. 75. None of the Disney Defendants requested and/or obtained permission, consent or authorization from Louis Prima or Plaintiff to produce, sell and distribute videocassette and/or DVD recordings of the "Jungle Book" that contain and include Louis Prima's performance therein. 76. Neither Louis Prima nor Plaintiff have ever received any compensation or payment whatsoever from any of the Disney Defendants for the sale and distribution to consumers of videocassette and/or DVD recordings of the "Jungle Book" that wrongfully contain and include Louis Prima's performance therein. 77. By virtue of the unauthorized sale and distribution to consumers of videocassette and DVD recordings of the "Jun gle Book" that wrongfully contain and include Louis Prima's performance therein, one or more of the Disney Defendants have breached and continue to breach the Agreement. 78. As a result of the Disney Defendants' breach, Plaintiff has been and continues to be substantially damaged. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally:
(a) for compensatory damages; (b) for an immediate and complete accounting of all sales of videocassette and DVD recordings of the "Jungle Book"; (c) for an immediate and complete accounting of all profits realized by any of the Disney Defendants from the sales of videocassette and DVD recordings of the "Jungle Book"; (d) for an injunction barring future sales of videocassette and DVD recordings of the "Jungle Book"; and (e) for such other and further relief as the Court deems just and proper.
SECOND COUNT (Unjust Enrichment) 79. Plaintiff repeats paragraphs 1 through 78 as if set forth at length herein. 80. As set forth hereinabove, one or more of the Disney Defendants have received substantial monies and realized substantial profits from the unauthorized sale and distribution of videocassette and DVD recordings of the "Jungle Book" that wrongfully contain and include Louis Prima's performance therein. 81. As set forth hereinabove, neither Louis Prima nor Plaintiff has ever received any compensation or payment from the unauthorized sale and distribution of videocassette and/or DVD recordings of the "Jungle Book" that wrongfully contain and include Louis Prima's performance therein. 82. As a direct and proximate result of tl~e unauthorized sale and distribution of videocassette and DVD recordings of the "Jungle Book" that wrongfully contain and include Louis Prima's performance therein, one or more of the Disney Defendants have been unjustly enriched and Plaintiff has been correspondingly damaged. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally, for compensatory damages, attorney's fees and costs, and such other and further relief as this Court deems just and proper. THIRD COUNT
(Breach of Contract - Non-Payment of Royalties for Sale of Videocassette Recordings) 83. Plaintiff repeats paragraphs 1 through 82 as if set forth at length herein. 84. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, Louis Prima granted to Disney the right and license to reproduce his performance in the "Jungle Book" in recordings for sale and distribution to consumers for use as home entertainment. 85. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, in exchange for the right and license to reproduce Louis Prima's performance in the "Jungle Book" for sale and distribution to consumers for use as home entertainment, Disney agreed to pay a royalty to Louis Prima, "computed on ninety percent (90%) of net sales, of five percent (5%) of the net price of records produced." Said royalty is to be reduced to two and one-half percent (2 1/2%) if the recording of Louis Prima's performance is "delivered through, or as part of, a record club or direct mail offering". 86. As set forth hereinabove, under the terms of the Agreement and Exhibit A incorporated therein, the terms "records", "phonograph records" and "recordings" were expressly defined in Exhibit A to the Agreement and intended by the parties to "include all forms of recording and reproduction manufactured by any method and intended primarily for use as home entertainment." 87. As set forth hereinabove, upon information and belief, one or more of the Disney Defendants are the assignees of the reproduction rights granted to Disney under the Agreement and Exhibit A thereto. 88. As set forth hereinabove, upon information and belief, one or more of the Disney Defendants, as assignees, assumed Disney's royalty obligations under the Agreement and Exhibit A thereto. 89. As set forth hereinabove, upon information and belief, beginning in or about 1991, one or more of the Disney Defendants reproduced Louis Prima's performance in the "Jungle Book" onto recordings, in the form of videocassettes, for sale and distribution to consumers for use as home entertainment. 90. As set forth hereinabove, upon information and belief, beginning in or about 1991, one or more of the Disney Defendants commenced the sale and distribution of recordings, in the form of videocassettes, that contain and include reproductions of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 91. As set forth hereinabove, upon information and belief, one or more of the Disney Defendants have from time to time between 1991 and the present continued to sell and distribute recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 92. By virtue of the foregoing sale and distribution by one or more of the Disney Defendants of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment, Louis Prima, and, Thereafter, Plaintiff were and are entitled to royalty payments as set forth in the Agreement and Exhibit A thereto. 93. The Disney Defendants failed to pay to Louis Prima and have continuously failed to pay to Plaintiff any royalties whatsoever due and owing from the sale and distribution of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 94. The failure by the Disney Defendants to pay such royalties as aforesaid constitutes a breach of the Agreement and Exhibit A thereto. 95. As a result of the aforesaid past and continuous breaches by the Disney Defendants, Plaintiff has sustained and continues to sustain substantial damages. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally:
(a) for compensatory damages; (b) for an immediate and complete accounting of all sales of videocassette recordings of the "Jungle Book"; (c) for an immediate and complete accounting of the suggested retail price of each videocassette recording of the "Jungle Book" sold; (d) for an immediate and complete accounting of the excise taxes for each videocassette recording of the "Jungle Book" sold; (e) for an immediate and complete accounting of the packaging costs for each videocassette recording of the "Jungle Book" sold; and (f) for such other and further relief as the Court deems just and proper.
FOURTH COUNT
(Breach of Contract - Failure to Provide Statement of Royalties) 96. Plaintiff repeats paragraphs 1 through 95 as if set forth at length herein. 97. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, Disney agreed, among other things, to render to Louis Prima semi-annual statements of accrued royalties earned by Louis Prima from the sale and distribution of recordings that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 98. As set forth hereinabove, one or more of the Disney Defendants have from time to time between 1991 and the present, continued to sell and distribute recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 99. As set forth hereinabove, one or more of the Disney Defendants have from time to time since the execution of the Agreement a nd Exhibit A thereto rendered to Louis Prima, and, thereafter, Plaintiff semi-annual statements of accrued royalties earned by Louis Prima for recordings that contain and include reproduction of Louis Prima's performance in the "Jungle Book" sold and distributed to consumers for use as home entertainment. 100. The statements referred to in the preceding paragraph did not include therein any statement of accrued royalties earned by and due to Louis Prima, and, thereafter, Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 101. The failure of one or more of the Disney Defendants beginning in or about 1991 and at the end of each successive six-month period thereafter to date to include in the aforesaid statements a statement of accrued royalties earned by and due to Louis Prima, and, thereafter, Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" constitutes a breach of the Agreement and Exhibit A thereto. 102. As a result of the aforesaid past and continuous breaches by the Disney Defendants, Plaintiff has sustained and continues to sustain substantial damages. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally:
(a) for compensatory damages; (b) for an immediate and complete accounting of all sales of videocassette recordings of the "Jungle Book"; (c) for an immediate and complete accounting of the suggested retail price of each videocassette recording of the "Jungle Book" sold; (d) for an immediate and complete accounting of the excise taxes for each videocassette recording of the "Jungle Book" sold; (e) for an immediate and complete accounting of the packaging costs for each videocassette recording of the "Jungle Book" sold; and (f) for such other and further relief as the Court deems just and proper.
FIFTH COUNT
(Accounting) 103. Plaintiff repeats paragraphs 1 through 102 as if set forth at length herein. 104. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, Disney agreed to render to Louis Prima semi-annual statements of accrued royalties earned by Louis Prima under the Agreement. 105. As set forth hereinabove, one or more of the Disney Defendants have from time to time rendered to Louis Prima, and, thereafter, Plaintiff semi-annual statements of accrued royalties earned by Louis Prima for his performance in the "Jungle Book". 106. As set forth hereinabove, the semi-annual statements referred to in the preceding paragraph failed to include any statement or reference whatsoever to accrued royalties earned by and due to Louis Prima, and, thereafter, Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 107. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, the amount of royalties earned by Louis Prima and due and owing from one or more of the Disney Defendants to Plaintiff is based upon, among other things, the number of recordings sold, the sale price of such recordings and the cost of packaging. 108. The profit information and sales data necessary to calculate the accrued royalties rightfully earned by Louis Prima and due and owing from one or more of the Disney Defendants to Plaintiff are known only to the Disney Defendants and can .only be ascertained from a complete accounting of the sale and distribution of videocassette recordings of the "Jungle Book". WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally, for a complete accounting of all sales of videocassettes of the "Jungle Book", including:
(a) the number of videocassettes sold; (b) the suggested retail price for each videocassette sold; (c) the packaging costs for each videocassette sold; and (d) any other cost that the Disney Defendants consider deductible from royalty payments.
SIXTH COUNT
(Fraud) 109. Plaintiff repeats paragraphs I through 108 as if set forth at length herein. 110. As set forth hereinabove, one or more of the Disney Defendants have from time to time rendered to Plaintiff semi-annual statements of accrued royalties earned by Louis Prima's performance in the "Jungle Book". 111. As set forth hereinabove, the aforesaid statements did not include royalties that were due and owing to Louis Prima from the sale and distribution of videocassette recordings of the "Jungle Book". 112. As set forth herein above, the types of "recordings" included in the aforesaid statements were identified by "product numbers" known only to the Disney Defendants and unknown to Plaintiff. 113. In rendering such statements, one or more of the Disney Defendants represented that the semi-annual statements of accrued royalties earned by Louis Prima's performance in the "Jungle Book" included all royalties earned by and due and owing to Plaintiff from all sales of "records", "phonograph recordings" and "recordings" as those terms are defined in the Agreement and Exhibit A thereto. 114. The representations made by one or more of the Disney Defendants in the each of the semi-annual statements of accrued royalties covering each six-month period beginning in or about 1991 and continuing to date were false in that said Disney Defendants failed to include in Such? statements the accrued royalties earned by and due to Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 115. One or more of the Disney Defendants fraudulently concealed from Plaintiff that the aforesaid statements did not include accrued royalties earned by and due to Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 116. As set forth hereinabove, one or more of the Disney Defendants fraudulently concealed from Plaintiff the number of videocassette recordings and reproductions of the "Jungle Book" that were sold and distributed to consumers for use as home entertainment. 117. The Disney Defendants knew that the representations made in each of the semi-annual statements of accrued royalties earned by Louis Prima under the Agreement covering each six-month period beginning in or about 1991 and continuing to date were false. 118. The Disney Defendants had no reasonable ground for believing that the representations made in each of the semi-annual statements of accrued royalties covering each six-month period beginning in or about 1991 and continuing to date were true. 119. The Disney Defendants made the above representations with the intent and purpose that Plaintiff rely on such representations. 120. The Disney Defendants made the above representations with the intent and purpose to defraud Plaintiff with regard to the accrued royalties rightfully due and owing to Plaintiff. 121. Plaintiff relied upon the truth and accuracy of the above representations made by the Disney Defendants. 122. Upon information and belief, the Disney Defendants made the aforesaid misrepresentations intentionally, wilfully, wantonly and maliciously and acted with oppression, fraud and malice with the knowledge and intent to defraud Plaintiff and to deprive Plaintiff of her property and with a conscious disregard for the rights of Plaintiff. 123. As a direct and proximate result of the aforesaid misrepresentations by the Disney Defendants, Plaintiff has been substantially damaged. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally, for compensatory damages, punitive damages, interest, attorney's fees and costs, and such other and further relief as the Court deems just and proper. SEVENTH COUNT
(Conspiracy to Commit Fraud) 124. Plaintiff repeats paragraphs 1 through 123 as if set forth at length herein. 125. As set forth herein above, the Disney Defendants fraudulently represented in the semi-annual statements of accrued royalties earned by Louis Prima's performance in the "Jungle Book" rendered to Plaintiff that such statements included all royalties due and owing to Plaintiff from all sales of "records", "phonograph recordings" and "recordings" as those terms are defined in the Agreement and Exhibit A thereto. 126. As set forth hereinabove, the Disney Defendants fraudulently concealed from Plaintiff that the aforesaid statements did not include accrued royalties earned by and due to Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 127. As set forth hereinabove, the Disney Defendants fraudulently concealed from Plaintiff the number of videocassette recordings and reproductions of the "Jungle Book" that were sold and distributed to consumers for use as home entertainment. 128. As part of the Disney Defendants' scheme detailed hereinabove, the Disney Defendants agreed and conspired among themselves that they would not pay to Plaintiff accrued royalties earned by and due to Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 129. In furtherance thereof, the Disney Defendants agreed and conspired among themselves that they would (i) render semi-annual royalty statements to Plaintiff that purported to include all royalties due and owing to Plaintiff from all sales of "records", "phonograph recordings" and "recordings" as those terms are defined in the Agreement and Exhibit A thereto, (ii) conceal from Plaintiff that the statements did not include such royalties and (iii) conceal from Plaintiff the number of videocassette recordings and reproductions of the "Jungle Book" that were sold and distributed to consumers for use as home entertainment. 130. As set forth herein above, the Disney Defendants caused Plaintiff to receive fraudulent semi-annual statements. 131. As set forth herein above, Plaintiff relied on the truth and accuracy of the representations made by the Disney Defendants in such semi-annual statements. 132. The Disney Defendants acted in concert in agreeing and conspiring to fraudulently represent to and conceal from Plaintiff the royalties reflected in the semi-annual statements. 133. The Disney Defendants all shared in the objective to fraudulently represent to and conceal from Plaintiff the royalties reflected in the semi-annual statements, and the general scope and intent of the fraudulent scheme detailed hereinabove was known to each of the Disney Defendants. 134. Each of the Disney Defendants agreed to the fraudulent scheme set forth hereinabove with full knowledge that the intent of the Disney Defendants in rendering fraudulent royalty statements was to defraud Plaintiff out of the accrued royalties earned by and due to Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 135. In furtherance of their scheme, the Disney Defendants agreed and conspired among themselves to conceal from Plaintiff the true and accurate amount of accrued royalties earned by and due to Plaintiff from the sale and distribution to consumers for use as home entertainment of recordings, in the form of videocassettes, that contain and include reproduction of Louis Prima's performance in the "Jungle Book". 136. The aforesaid acts of the Disney Defendants as set forth hereinabove constitute dishonest and/or fraudulent conduct committed against Plaintiff, which, absent the unlawful agreement of the Disney Defendants, gives Plaintiff an independent right of action against the Disney Defendants. WHEREFORE, Plaintiff demands that judgment be entered in her favor against .the Disney Defendants, jointly and severally, for compensatory damages, punitive damages, interest, attorney's fees and costs, and such other and further relief as the Court deems just and proper. EIGHTH COUNT
(Negligent Misrepresentation) 137. Plaintiff repeats paragraphs 1 through 136 as if set forth at length herein. 138. As set forth hereinabove, one or more of the Disney Defendants have from time to time rendered to Plaintiff semi-annual statements of accrued royalties earned through Louis Prima's performance in the "Jungle Book". 139. Under the terms of the Agreement and Exhibit A thereto, one or more of the Disney Defendants undertook the responsibility, duty and obligation to accurately calculate and account for the accrued royalties earned due to Louis Prima's performance in the "Jungle Book". 140. One or more of the Disney Defendants owed a duty of care to Plaintiff to ensure that the calculation and accounting of accrued royalties due and owing through Louis Prima's performance in the "Jungle Book" was true and accurate. 141. One or more of the Disney Defendants breached the aforesaid duty by negligently representing to Plaintiff that the semi-annual statements of 18 accrued royalties earned through Louis Prima's performance in the "Jungle Book" included all royalties earned by and due and owing to Plaintiff from all sales of "records", "phonograph recordings" and "recordings" as those terms are defined Exhibit A. 142. As a direct and proximate result of the aforesaid misrepresentations by the Disney Defendants, Plaintiff has been substantially damaged. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally, for .compensatory damages, interest, attorney's fees and costs, and such other and further relief as the Court deems just and proper. NINTH COUNT
(Breach of Fiduciary Duty) 143. Plaintiff repeats paragraphs 1 through 142 as if set forth at length herein. 144. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, one or more of the Disney Defendants undertook the responsibility, duty and obligation to accurately calculate and account for the accrued royaltics due to Plaintiff that were earned through Louis Prima's performance in the "Jungle Book". 145. As set forth hereinabove, the information and sales data necessary to accurately and properly calculate the accrued royalties rightfully due and owing from one or more of the Disney Defendants to Plaintiff are known only to said Disney Defendants and is unknown to Plaintiff. 146. By virtue of their (i) undertaking the responsibility, duty and obligation to accurately calculate and account for the accrued royalties earned through Louis Prima's performance in the "Jungle Book" and (ii) sole access to the sales information and data necessary to accurately and properly calculate said royalties, one or more of the Disney Defendants have, at all times relevant hereto, stood in a fiduciary relationship with and owed a fiduciary duty to Plaintiff. 147. One or more of the Disne y Defendants breached their fiduciary duty to Plaintiff by failing as aforesaid to pay and include in its statement of accrued royalties, those royalties earned from all sales of "records", "phonograph recordings" and "recordings" as those terms are defined in the Agreement. 148. As a direct and proximate result of the aforesaid breach of fiduciary duty, Plaintiff has suffered and continues to suffer substantial damages. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally, for compensatory damages, interest, attorney's fees and costs, and such other and further relief as the Court deems just and proper. TENTH COUNT
(Breach of Contract — Non-Payment of Royalties for Sale of DVD Recordings) 149. Plaintiff repeats paragraphs 1 through 148 as if set forth at length herein. 150. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, Louis Prima granted to Disney the right and license to reproduce his performance in the "Jungle Book" in recordings for sale and distribution to consumers for use as home entertainment. 151. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, in exchange for the right and license to reproduce Louis Prima's performance in the "Jungle Book" for sale and distribution to consumers for use as home entertainment, Disney agreed to pay a royalty to Louis Prima, "computed on ninety percent (90%) of net sales, of five percent (5%) of the net price of records produced." Said royalty is to be reduced to two and one-half percent (2 1/2%) if the recording of Louis Prima's performance is "delivered through, or as part of, a record club or direct mail offering". 152. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, the terms "records", "phonograph records" and "recordings" were expressly defined in Exhibit A and intended by the parties to "include all forms of recording and reproduction manufactured by any method and intended primarily for use as home entertainment." 153. As set forth hereinabove, upon information and belief, one or more of the Disney Defendants are the assignees of the reproduction rights granted to Disney under the Agreement and Exhibit A thereto. 154. As set forth hereinabove, upon information and belief, one or more of the Disney Defendants, as assignees, assumed Disney's royalty obligations under the Agreement and Exhibit A thereto. 155. As set forth hereinabove, upon information and belief, beginning in or about November 1999, one or more of the Disney Defendants reproduced Louis Prima's performance in the "Jungle Book" onto recordings, in the form of DVDs, for 10 sale and distribution to consumers for use as home entertainment. 156. As set forth hereinabove, upon information and belief, beginning in or about November 1999, one or more of the Disney Defendants commenced the sale and distribution of recordings, in the form of DVDs, that contain and include reproductions of Louis Prima's performance in the "Jungle Book" to consumers as use as home entertainment. 157. As set forth hereinabove, upon information and belief, one or more of the Disney Defendants have from time to time between November 1999 and the present continued to sell and distribute recordings, in the form of DVDs, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 158. By virtue of the foregoing sale and distribution by one or more of the Disney Defendants of recordings, in the form of DVDs, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment, Louis Prima, and, thereafter, Plaintiff are entitled to royalty payments as set forth in the Agreement and Exhibit A thereto. 159. To date, the Disney Defendants have failed to pay to Plaintiff any royalties whatso ever due and owing from the sale and distribution of recordings, in the form of DVDs, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 160. The failure by the Disney Defendants to pay such royalties as aforesaid constitutes a breach of the Agreement and Exhibit A thereto. 161. As a result of the aforesaid past and continuous breaches by the Disney Defendants, Plaintiff has sustained and continues to sustain substantial damages. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally:
(a) for compensatory damages; (b) for an immediate and complete accounting of all sales of DVD recordings of the "Jungle Book"; (c) for an immediate and complete accounting of the suggested retail price of each DVD recording of the "Jungle Book" sold; (d) for an immediate and complete accounting of the excise taxes for each DVD recording of the "Jungle Book" sold; (e) for an immediate and complete accounting of the packaging costs for each DVD recording of the "Jungle Book" sold; and (f) for such other and further relief as the Court deems just and proper.
ELEVENTH COUNT
(Accounting) 162. Plaintiff repeats paragraphs I through 161 as if set forth at length herein. 163. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, Disney agreed to render to Louis Prima semi-annual statements of accrued royalties earned by Louis Prima under the Agreement. 164. As set forth hereinabove, one or more of the Disney Defendants have from time to time rendered to Louis Prima, and, thereafter, Plaintiff semi-annual statements of accrued royalties earned by Louis Prima for his performance in the "Jungle Book". 165. As set forth hereinabove, to date, Plaintiff has not received any statements of accrued royalties earned nor any royalty payments earned by Louis Prima from the sale and distribution by one or more of the Disney Defendants of DVD recordings of the "Jungle Book" to consumers for use as home entertainment. 166. As set forth hereinabove, to date, Plaintiff has not been advised of the number of DVD recordings of the "Jungle Book" that have been and continue to be sold and distributed by one or more of the Disney Defendants. 167. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, the amount of royalties earned by Louis Prima and due and owing from one or more of the Disney Defendants to Plaintiff is based upon, among other things, the number of recordings sold, the sale price of such recordings and the cost of packaging. 168. The profit information and sales data necessary to calculate the accrued royalties rightfully earned by Louis Prima and due and owing from one or more of the Disney Defendants to Plaintiff are known only to the Disney Defendants and can only be ascertained from a complete accounting of the sale and distribution of DVD recordings of the "Jungle Book". WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants, jointly and severally, for a complete accounting of all sales of DVDs of the "Jungle Book", including:
(a) the number of DVDs sold; (b) the suggested retail price for each DVD sold; (c) the packaging costs for each DVD sold; and (d) any other cost that the Disney Defendants consider deductible from royalty payments.
TWELFTH COUNT
(Declaratory Relief) 169. Plaintiff repeats paragraphs 1 through 168 as if set forth at length herein. 170. As set forth hereinabove, under the terms of the Agreement, the grant of rights from Louis Prima to Disney without any further compensation and/or payment obligation to him were limited solely to the rights required by Disney to exploit the "Jungle Book" motion picture photoplay in public movie theaters and/or by way of public tel evision broadcast. 171. Under the Agreement, Louis Prima did not grant to Disney the right to sell and distribute to consumers for use as home entertainment videocassette, DVD or other recordings of the "Jungle Book" motion picture photoplay that contain and include his performance therein without any further compensation to him. 172. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, Louis Prima granted to Disney the right and license to reproduce his performance in the "Jungle Book" in recordings for sale and distribution to consumers for use as home entertainment. 173. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, in exchange for the right and license to reproduce Louis Prima's performance in the "Jungle Book" for sale and distribution to consumers for use as home entertainment, Disney agreed to pay a royalty to Louis Prima, "computed on ninety percent (90%) of net sales, of five percent (5%) of the net price of records produced." Said royalty is to be reduced to two and one-half percent (2 1/2%) if the recording of Louis Prima's performance is "delivered through, or as part of, a record club or direct mail offering". 174. As set forth hereinabove, under the terms of the Agreement and Exhibit A thereto, the terms "records", "phonograph records" and "recordings" were expressly defined in Exhibit A and intended by the parties to "include all forms of recording and reproduction manufactured by any method and intended primarily for use as home entertainment." 175. As set forth hereinabove, upon information and belief, beginning in or about 1991, one or more of the Disney Defendants commenced the sale and distribution of recordings, in the form of videocassettes, that contain and include reproductions of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment. 176. As set forth hereinabove, upon information and belief, beginning in or about November 1999, one or more of the Disney Defendants commenced the sale and distribution of recordings, in the form of DVDs, that contain and include reproductions of Louis Prima's performance in the "Jungle Book" to consumers as use as home entertainment. 177. As set forth hereinabove, by virtue of the sale and distribution by one or more of the Disney Defendants of recordings, in the form of videocassettes and DVDs, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment, Louis Prima, and, thereafter, Plaintiff, are entitled to royalty payments as set forth in the Agreement and Exhibit A thereto. 178. As set forth hereinabove, notwithstanding the express terms of the Agreement and Exhibit A thereto, to date, the Disney Defendants have failed to pay to Plaintiff any royalties whatsoever due and owing from the sale and distribution of recordings, in the form of videocassettes and DVDs, that contain and include reproduction of Louis Prima's performance in the "Jungle nook" to consumers for use as home entertainment. 179. As set forth hereinabove, a dispute has arisen between Plaintiff and the Disney Defendants as to the Disney Defendants' obligations under the Agreement and Exhibit A thereto to make certain royalty payments to Plaintiff. 180. It is Plaintiffs position and contention that pursuant to the express and unambiguous terms of the Agreement and Exhibit A thereto, the sale and distribution by one or more of the Disney Defendants of recordings, whether in the form or videocassettes, DVDs or any other format, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment entitles Plaintiff to receive and obligates and requires the Disney Defendants to pay royalties pursuant to the Agreement and Exhibit A thereto. 181. It is the Disney Defendants' position and contention that the sale of videocassette, DVD and certain other forms of recordings, despite being sold to consumers for use as home entertainment, do not require payment of royalties pursuant to the Agreement and Exhibit A thereto. 182. An actual and bona fide controversy and dispute exists between Plaintiff and the Disney Defendants as to their rights and obligations under the Agreement and Exhibit A thereto. WHEREFORE, Plaintiff demands that judgment be entered in her favor against the Disney Defendants:
(a) declaring that pursuant to the express and unambiguous terms of the Agreement and Exhibit A thereto, the sale and distribution by one or more of the Disney Defendants of recordings, whether in the form of videocassettes, DVDs or any other format, that contain and include reproduction of Louis Prima's performance in the "Jungle Book" to consumers for use as home entertainment entitles Plaintiff to receive and obligate~ and requires the Disney Defendants to pay royalties as set forth in the Agreement and Exhibit A thereto; (b) declaring that Plaintiff is entitled to receive the contractual royalty payments pursuant to the Agreement and Exhibit A thereto by virtue of the past sale and distribution of any recordings, in the form of videocassettes, DVDs or any other format, of the "Jungle Book" to consumers for use as home entertainment; (c) declaring that Plaintiff is entitled to receive the contractual royalty payments pursuant to the Agreement and Exhibit A thereto b
