2008.01.18 - Slash & Duff Vs. Axl lawsuit document (& other related court documents)

1. Plaintiffs allege copyright infringement arising under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. and violations of the Lanham Act, 15 U.S.C. § 1051 et seq. This Court has subject matter jurisdiction over these federal claims pursuant to 15 U.S.C. § 1121, 17 U.S.C. §§ 101 et seg, and 28 U.S.C. §§ 1331 and 1338. The Court has jurisdiction over Plaintiffs’ state law and common law claims under 28 U.S.C. §§ 1338(b) and 1367.

2. Venue lies in the Central District of California pursuant to 28 U.S.C. §§ 1391 (b) and (c). Plaintiffs are informed and believe that all defendants reside in or transact business in the Central District of California and may otherwise be found there, and a substantial part of the events and omissions giving rise to Plaintiffs’ claims occurred in such district.

3. At all times mentioned herein, Guns N’ Roses (“GNR”) was a California General Partnership, doing business in the State of California.

4. At all times mentioned herein, Saul Hudson p/k/a Slash (“Slash”) was, and continues to be, an individual residing in the State of California, and a partner in GNR.

5. At all times mentioned herein, Michael McKagan p/k/a Duff (“Duff’) was, and continues to be, an individual residing in the State of Washington, and a partner in GNR.

6. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, W. Axl Rose (“Axl”) was an individual residing and doing business in the State of California, and is a former partner in GNR.

7. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Black Frog Entities, Inc. aka Black Frog Entities and dba Black Frog Publishing (“Black Frog Entities”) was a California corporation doing business in the State of California, and owned and/or controlled by Axl.

8. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Sanctuary Music Publishing Limited was a British company, doing business in the State of New York and the State of California; Sanctuary Group Inc. was a Delaware corporation, with an office in the State of New York, doing business in the State of California; and Sanctuary Kobalt (W.A.R.) Limited, was a British company of unknown form doing business in the State of California. (These entities are referred to collectively as “Sanctuary.”) At all relevant times, Sanctuary was engaged in the music publishing business.

9. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Sanctuary Artist Management Inc. (“Sanctuary Management”) was a Delaware corporation, doing business in the State of California, with an office in Los Angeles, California. At all relevant times, Sanctuary Management was engaged in the business of artist personal management and was Axl’s personal manager, directing and advising him in all matters related to his career as a recording artist, performer and entertainer.

10. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Bravado International Group was a British company of unknown form, doing business in the State of New York and State of California, with an office in Los Angeles, California; and that Bravado International Group Merchandising Services, Inc. was a California corporation with offices in New York, New York and Los Angeles, California. (These entities are referred to collectively as “Bravado.”)

11. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Sanctuary, Sanctuary Management and Bravado were affiliated companies, with common ownership and/or control, overlapping key employees and were members of and/or affiliated with the “Sanctuary Group” of companies.

12. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as DOES 1 through 10, inclusive, and sue those defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when obtained.

13. Plaintiffs are informed and believe, and on that basis allege that at all relevant times mentioned herein, each of the defendants was acting in concert with the other defendants, and/or was the agent and/or co-conspirator of the other defendants, and each of them, and in doing the things herein alleged was acting within the scope of his or her agency and authority, or within the scope, and in furtherance of, such conspiracy and with the permission and consent of the other defendants and that each defendant was in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

14. In or around 1984, Axl, Slash and Duff, along with other individuals, formed Guns N’ Roses (“GNR,” “the GNR Partnership” or “the Partnership”), a California general partnership, known as Guns N’ Roses Music.

15. By 1992, Axl, Slash and Duff were the only partners that remained as members of GNR.

16. On or around September 1, 1992, Axl, Slash and Duff entered into a written partnership agreement entitled “Memorandum of Agreement” (“Partnership Agreement”). The Partnership Agreement affirmed formation of the partnership in 1984 (operating under an oral partnership agreement since that time) and defined the rights and obligations of the GNR partners. A copy of the Partnership Agreement is attached hereto as Exhibit “A.”

17. The Partnership Agreement provided that if a partner was expelled or voluntarily withdrew from the GNR Partnership, he would be entitled to receive only specified shares of certain revenues of the GNR Partnership (e.g., his net share of recording and publishing income, but no merchandising or other monies), with all such monies being net of partnership costs, obligations and expenses. The Partnership Agreement did not authorize or grant a withdrawing member the continued right to manage or control any partnership assets or business.

18. On August 31, 1995, Axl sent Duff and Slash a written notice pursuant to the Partnership Agreement informing them of his withdrawal from the Partnership, effective December 30, 1995. A copy of that notice is attached hereto as Exhibit “B.” The notice included Axl’s statement that, based on a term of the Partnership Agreement, “I intend to use the name ‘Guns N’ Roses’ in connection with a new group which I will form.” Axl later formed a new band performing under the name “Guns N’ Roses,” but not including Slash and Duff.

19. Slash and Duff remained members of the GNR Partnership, which owns and controls all GNR Partnership business and assets, including but not limited to: (1) the copyrights in the GNR songs written and composed prior to December 30, 1995 (which songs are in fact registered in the name of Guns N’ Roses Music), excluding songs written and composed after December 30, 1995 by Axl’s new “Guns N’ Roses” band (“GNR Songs”); (2) famous logos, artwork and marks created and used by GNR prior to December 30, 1995 excluding logos, artwork and marks, if any, created by Axl’s new “Guns N’ Roses” band after December 30, 1995 (“GNR Marks”), and (3) the right to license, control, and exploit the GNR Songs, GNR Marks and merchandise bearing GNR Marks (“GNR Merchandise”).

20. Under the terms of the Partnership Agreement, upon his withdrawal from the GNR Partnership, Axl was deemed a “Terminated Partner,” and his right to participate in or make decisions regarding partnership business matters ended. Axl’s rights to share in certain partnership net revenues are set forth in the Partnership Agreement.

21. Paragraph 1 of the Partnership Agreement provides that the GNR Partnership “shall engage in the business of utilizing and commercially exploiting their collective talents and personalities in the areas of recording of audio and video tapes ... and sales of merchandise.” The Partnership Agreement also details the manner in which the net merchandising profits are calculated and distributed to the partners. The right to control and grant rights to sell and exploit GNR Merchandise is a valuable asset of the GNR Partnership.

22. Since at least 1985, Plaintiffs have used GNR Marks in connection with the sale of goods and merchandise, including albums, clothing, posters, etc.

23. Plaintiffs are informed and believe, and on that basis allege, that in or around September 2002, Sanctuary and Sanctuary Management induced and/or caused Axl, directly and/or through his company, Black Frog Entities, to enter into a merchandising license agreement granting to Bravado, a company affiliated with Sanctuary and Sanctuary Management, merchandising rights for the new “Guns N’ Roses” band. Pursuant to paragraphs 1(a) and (b) of such agreement, this grant expressly excluded the GNR Marks. Under this merchandising agreement, Axl was to receive a royalty on merchandise in the amount of 15% of gross income from mail order sales, 17% of gross income from wholesale/retail sales in the United States and Canada, and 15% of gross income from wholesale/retail sales in the rest of the world.

24. However, beginning in or about 2004 and without permission from the GNR Partnership or its partners, Bravado improperly started selling and/or authorizing the sale of merchandise bearing the GNR Partnership’s GNR Marks, notwithstanding the express exclusion of the right to do so in the written merchandising agreement signed by Axl. Plaintiffs are informed and believe, and on that basis allege, that after the GNR Partnership discovered and objected to Bravado’s use of GNR Marks and sale and/or license of GNR Merchandise, Sanctuary, Sanctuary Management and/or Bravado wrongfully induced and/or caused Axl to sign a letter in March 2006 purporting to retroactively grant Bravado the rights to sell GNR Merchandise. Specifically, the letter recited that two years earlier, in 2004, Axl had supposedly “granted a separate non-exclusive worldwide license to [Bravado] to manufacture, distribute, sell and exploit products throughout the world embodying the ‘historic GNR artwork’” on the terms set forth in the September 2002 merchandising license agreement with Bravado (collectively, the “Bravado Agreements”). In arriving at the terms of the Bravado Agreements, to the extent they purport to cover GNR Marks and GNR Merchandise, Sanctuary, Sanctuary Management and/or Bravado, through their control over Axl as his personal manager and publisher, secured for their benefit a below market royalty rate for the GNR Marks and GNR Merchandise.

25. The GNR Partnership holds the sole right to exploit the GNR Marks and GNR Merchandise, and to collect and distribute the revenues, net of expenses, in accordance with the Partnership Agreement. The GNR Partnership did not authorize Defendants to enter into any merchandising agreement relating to GNR Merchandise or the GNR Marks, including the Bravado Agreements, and did not authorize Defendants to sell GNR Merchandise or exploit the GNR Marks. Defendants, given their role as Axl’s personal manager and knowledge of the terms of the Partnership Agreement, knew or should have known that Axl did not have the right to exploit or grant rights to exploit the GNR Marks and GNR Merchandise, or to collect, assign or distribute revenues from such exploitation.

26. Plaintiffs are informed and believe, and on that basis allege, that Defendants have engaged in the manufacture, sale, distribution and exploitation of GNR Merchandise and GNR Marks without the authorization of the GNR Partnership or any of its partners (i.e., Slash and Duff). Plaintiffs are informed and believe, and on that basis allege, that, as a result of such exploitation, Defendants have received in excess of approximately $4,000,000 from sales, without reporting, accounting or paying any revenue to the GNR Partnership or its partners.

27. Plaintiffs are informed and believe, and on that basis allege, that Defendants have knowingly advertised and sold merchandise bearing Slash’s and/or Duff's images and/or likenesses, without their consent.

28. Plaintiffs are informed and believe, and on that basis allege, that Defendants knew or should have known that the GNR Merchandise and GNR Marks were, and are, assets of the GNR Partnership, and the GNR Partnership possessed and possesses the exclusive right to license, control, and exploit the GNR Merchandise and GNR Marks. Accordingly, Defendants knew or should have known that they did not possess the right to exploit such assets at all, let alone at a rate significantly below market, and certainly did not possess the right to unilaterally exploit such assets without the authorization or consent of Plaintiffs, as the sole remaining members of the GNR Partnership.

29. The copyrights in the GNR Songs are owned by, and are registered with the United States Copyright Office in the name of, Guns N’ Roses Music, the GNR Partnership. A copy of a sample copyright registration for a GNR Song is attached hereto as Exhibit “C.”

30. The copyrights in and to the GNR Songs are extremely valuable partnership assets that generate substantial income to the GNR Partnership, including but not limited to publishing and licensing revenues.

31. The GNR Partnership, as the registered and true owner of the copyrights in the GNR Songs, has the exclusive right to control and administer those copyrights, which includes the exclusive right to grant publishing and other licenses to exploit the GNR Songs, collect money therefrom and distribute the revenues, net of expenses, in accordance with the Partnership Agreement.

32. GNR receives license requests on a regular basis, including, for example, requests to use GNR Songs in movies, commercials, television programs and ringtones in exchange for substantial license fees.

33. Plaintiffs are informed and believe, and on that basis allege, that, in or about September 2004, Sanctuary and/or Sanctuary Management induced and/or caused Axl, through his company Black Frog Entities, to enter into a purported worldwide publishing agreement with Sanctuary Kobalt (W.A.R.) Limited, a company created by and/or affiliated with Sanctuary and/or Sanctuary Management (the “Sanctuary Agreement”). Through the Sanctuary Agreement, Sanctuary and Sanctuary Management induced and/or caused Axl and his company, without authorization from the GNR Partnership, to purport to assign and convey to Sanctuary broad rights to administer and exploit the GNR Songs, to control licensing of the GNR Songs and to collect gross revenues arising from the exploitation of the GNR Songs.

34. Plaintiffs are informed and believe, and on that basis allege, that Defendants knew or should have known that the copyrights in the GNR Songs were registered in the name of, and owned by, the GNR Partnership and that Axl did not have the right or authority to assign or convey to Defendants any rights to administer or exploit the GNR Songs, control licensing of the GNR Songs or collect any monies arising from the exploitation of the GNR Songs outside of the Partnership.

35. Plaintiffs are informed and believe, and on that basis allege, that Sanctuary and Sanctuary Management have falsely represented (or caused Axl to falsely represent) to third parties, including but not limited to domestic and foreign performing rights societies (e.g., ASCAP), the Harry Fox Agency (an organization which acts as agent for the owner of copyrights in musical compositions with respect to the issuance of “mechanical” rights), and domestic and foreign music publishing companies, that Sanctuary administers or controls part or all of the copyrights in and to GNR Songs. Plaintiffs are informed and believe, and on that basis allege, that as a result of such misrepresentations Sanctuary has purported to exercise control over the licensing and exploitation of GNR Songs and improperly has received royalties and revenue from the exploitation of GNR Songs by third parties outside of and without accounting to the GNR Partnership for any such royalties.

36. Plaintiffs are also informed and believe, and on that basis allege, that Defendants have attempted to block, discourage, or otherwise prevent the consummation of certain highly valuable licensing opportunities by the GNR Partnership and that one or more Defendants have done so by wrongfully and fraudulently communicating to third parties, including Geffen Records, the GNR Partnership accountants and business managers and others, that no licenses can be issued without their express authorization and consent.

37. Plaintiffs are informed and believe, and on that basis allege, that the conduct of some or all of the Defendants has resulted in the loss of numerous valuable licensing opportunities that properly belong to the GNR Partnership. Most egregiously, on or about January 30, 2006, Sanctuary Management unilaterally and arbitrarily announced that they would block or veto all licenses for GNR Songs in any Universal Studios production until and unless Slash would consent to the release of a Guns N’ Roses “Greatest Hits Vol. 2” album, effectively holding the GNR Songs hostage in an effort to force Slash to forfeit his vested legal rights in the release of any Guns N’ Roses greatest hits album. Plaintiffs are informed and believe, and on that basis allege, that this unilateral action was undertaken in bad faith and has cost Plaintiffs and the GNR Partnership substantial sums, including but not limited to the loss of licensing revenue in connection with the use of the musical composition and sound recording of “Paradise City” in the motion picture “Miami Vice.” Such conduct is continuing, and will continue, to cause injury to Plaintiffs and to the GNR Partnership.

38. Plaintiffs are informed and believe, and on that basis allege, that Sanctuary and Sanctuary Management knew or should have known that the GNR Songs were and are assets of the GNR Partnership and that the GNR Partnership possessed and possesses the exclusive right to license, control, and exploit the GNR Songs. Accordingly, Sanctuary and Sanctuary Management knew or should have known that they did not have the authority to control the licensing or exploitation of GNR Songs.

FIRST CLAIM FOR RELIEF
(Copyright Infringement Against Axl, Black Frog Entities, Sanctuary, Sanctuary Management and Does 1-10, inclusive)

39. Plaintiffs incorporate by reference paragraphs 1 through 38, above, as though fully set forth herein.

40. The copyrights in the GNR Songs belong to and are registered in the name of Guns N’ Roses Music, as required by 17 U.S.C. § 411(a).

41. Defendants infringed GNR’s copyrights by (a) entering into, inducing and/or ratifying the Sanctuary Agreement; (b) purporting to grant to Sanctuary Kobalt (W.A.R.) Limited the contractual right to administer and exploit the GNR Songs and the right to collect Axl’s supposed gross “share” of the revenues generated from the exploitation of the copyrights, rather than having all such monies paid to the GNR Partnership for distribution under the Partnership Agreement; (c) participating in the administration, exploitation and collection of revenues from the exploitation of the GNR Songs without proper authorization; and (d) designating themselves as having such rights in derogation of the true copyright owners’ rights.

42. Defendants’ aforementioned acts of infringement have been willful, intentional and with indifference to Plaintiffs’ rights.

43. As a result of the aforementioned infringement by Defendants, Plaintiffs have suffered, and will continue to suffer, damages in a currently unascertained amount. Plaintiffs are entitled to statutory damages pursuant to 17 U.S.C. § 504(c) and these statutory damages should be enhanced in accordance with 17 U.S.C. § 504(c)(2) because of Defendants’ willful copyright infringement. Plaintiffs are also entitled to recover their attorneys’ fees and costs of suit pursuant to 17 U.S.C. § 505.

44. Plaintiffs have been and unless enjoined by this Court will continue to be, damaged and irreparably harmed by Defendants’ acts of infringement. Such irreparable harm constitutes an injury for which Plaintiffs have no adequate remedy at law. Accordingly, Plaintiffs are entitled to injunctive relief pursuant to 17 U.S.C. § 502.

45. Plaintiffs are informed and believe, and on that basis allege that at all relevant times mentioned herein, Sanctuary Management acted in concert with, induced and/or conspired with the other Defendants to commit the above referenced copyright infringement, acted in furtherance of such conspiracy and was in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

SECOND CLAIM FOR RELIEF
(False Designation of Origin [15 U.S.C. § 1125(a)] Against Axl, Black Frog Entities, Bravado, Sanctuary Management and Does 1-10, inclusive)

46. Plaintiffs incorporate by reference paragraphs 1 through 45, above, as though fully set forth herein.

47. As a result of the GNR Partnership’s extensive use, sale and promotion of the GNR Marks throughout the world, such marks have become famous and enjoy considerable goodwill and widespread recognition as being associated with the GNR Partnership and the band performing as “Guns N’ Roses” prior to December 30, 1995, comprised of, at minimum, Axl, Slash and Duff.

48. By their unauthorized sale of merchandise bearing GNR Marks, Defendants have caused goods with GNR Marks to enter into interstate commerce. Defendants’ use of GNR Marks in interstate commerce misrepresents and misleads consumers into believing that Bravado, Axl, and Black Frog Entities are acting on behalf of the GNR Partnership and is likely to cause confusion, mistake or deception as to the affiliation, connection or association of Bravado, Axl and Black Frog Entities with the GNR Partnership, or as to the origin, sponsorship or approval of Axl’s, Black Frog Entities’ and Bravado’s business by the GNR Partnership. Defendants’ use of GNR Marks misleads consumers into believing that they are buying a product released authorized, sponsored and/or endorsed by the original GNR band or GNR Partnership. This unauthorized use of GNR Marks is a false designation of origin in violation of 15 U.S.C.A. § 1125(a).

49. The intentional nature of Defendants’ aforementioned actions makes this an exceptional case under 15 U.S.C. § 1117(a).

50. By reason of Defendants’ acts alleged herein, Plaintiffs have and will suffer damage to their business, reputation and good will and the loss of sales and profits Plaintiffs would have made but for Defendants’ acts.

51. Plaintiffs have been and, unless enjoined by this Court, will continue to be, damaged and irreparably harmed by Defendants’ acts of false designation of origin. Such irreparable harm constitutes an injury for which Plaintiffs have no adequate remedy at law. Accordingly, Plaintiffs are entitled to injunctive relief.

52. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Sanctuary Management acted in concert with, induced and/or conspired with the other Defendants to commit the above referenced false designation of origin, acted in furtherance of such conspiracy and was in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

THIRD CLAIM FOR RELIEF
(Violation of California Civil Code § 3344 Against Bravado, Sanctuary, Sanctuary Management and Does 1-10, inclusive)

53. Plaintiffs incorporate by reference paragraphs 1 through 52, above, as though fully set forth herein.

54. Plaintiffs are informed and believe, and on that basis allege that Bravado knowingly used Slash’s and/or Duff’s images, photographs, likenesses and/or personas in order to sell unauthorized merchandise.

55. Bravado did not have Slash’s or Duff's consent to use their images, photographs, likenesses and/or personas for this purpose.

56. Plaintiffs are informed and believe, and on that basis allege, that Bravado’s use of Slash’s and/or Duffs images, photographs, likenesses and/or personas was directly connected to its commercial purpose in selling unauthorized merchandise.

57. As a direct and proximate result of Bravado’s conduct, Plaintiffs have sustained and will continue to sustain general and specified damages, including damage to their reputations and in the form of lost publicity value.

58. Plaintiffs are informed and believe, and on that basis allege that, at all relevant times mentioned herein, Sanctuary and/or Sanctuary Management acted in concert with, induced and/or conspired with Bravado to commit the above referenced unauthorized use of Slash’s and/or Duff's images, photographs, likenesses and/or personas, acted in furtherance of such conspiracy and was in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

59. Defendants’ actions were malicious, fraudulent and oppressive, and undertaken in conscious disregard of Plaintiffs’ rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from similar future conduct.

60. Plaintiffs have been and, unless enjoined by this Court, will continue to be, damaged and irreparably harmed by Defendants’ unauthorized use of Slash’s and/Duff's images, photographs, likenesses and/or personas. Such irreparable harm constitutes an injury for which Plaintiffs have no adequate remedy at law. Accordingly, Plaintiffs are entitled to injunctive relief.

61. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Sanctuary and Sanctuary Management acted in concerted with, induced and/or conspired with Bravado to commit the above referenced unauthorized use of Slash’s and/or Duffs images, photographs, likenesses and/or personas, acted in furtherance of such conspiracy and was in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

FOURTH CLAIM FOR RELIEF
(Common Law Misappropriation of Likeness Against Bravado, Sanctuary, Sanctuary Management and Does 1-10, inclusive)

62. Plaintiffs incorporate by reference paragraphs 1 through 61, above, as though fully set forth herein.

63. Plaintiffs are informed and believe, and on that basis allege that Bravado knowingly used Slash’s and/or Duff's images, likenesses and/or identities without their authorization or consent.

64. Plaintiffs are informed and believe, and on that basis allege, that Bravado obtained a financial benefit by using Slash’s and/or Duff's images, likenesses and/or identities to sell unauthorized merchandise.

65. As a direct and proximate result of Bravado’s conduct, Plaintiffs have sustained and will continue to sustain general and special damages, including damages to their reputation and loss of publicity value.

66. Defendants’ actions were malicious, fraudulent and oppressive, and undertaken in conscious disregard of Plaintiffs’ rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from similar future conduct.

67. Plaintiffs have been and, unless enjoined by this Court, will continue to be, damaged and irreparably harmed by Defendants’ acts of misappropriation of likeness. Such irreparable harm constitutes an injury for which Plaintiffs have no adequate remedy at law. Accordingly, Plaintiffs are entitled to injunctive relief.

68. Plaintiffs are informed and believe, and on that basis allege, that at all relevant times mentioned herein, Sanctuary and Sanctuary Management acted in concerted with, induced and/or conspired with Bravado to commit the above referenced unauthorized use of Slash’s and/or Duffs images, likenesses and/or identities, acted in furtherance of such conspiracy and was in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

FIFTH CLAIM FOR RELIEF
(Interference With Prospective Economic Advantage Against All Defendants and Does 1-10, inclusive)

69. Plaintiffs incorporate by reference paragraphs 1 through 68, above, as though fully set forth herein.

70. Defendants were, and continue to be, specifically aware that the GNR Merchandise, GNR Marks, and GNR Songs were, and are, assets of the GNR Partnership, and that the GNR Partnership possessed and possesses the exclusive right to license, control, and exploit such assets. Defendants also were aware of the value of such GNR Partnership assets, the GNR Partnership’s opportunities to exploit such assets and the fact that there are regular license requests by third parties to exploit such assets.

71. By the misconduct alleged above, Defendants’ have interfered with Plaintiffs’ economic advantages, including their ability to administer, enter into licenses, and collect revenues from the licensing of GNR Songs; administer, enter into licenses engage in and/or maximize the sale and exploitation of GNR Merchandise and GNR Marks; and collect revenue from the exploitation of GNR Songs, GNR Merchandise and GNR Marks.

72. Defendants’ interference is not only wrongful, but is also fraudulent in that they are, among other things, holding themselves out to third parties as having the right or authority to control or grant rights relating to GNR Partnership assets and to exploit and collect revenue from the exploitation of GNR Songs, GNR Merchandise and GNR Marks, when in fact, they do not. In addition, such conduct is also an unfair trade practice in violation of Business and Professions Code section 17200, et seq., as alleged herein.

73. As a proximate result of Defendants’ wrongful interference in the business of the GNR Partnership, the GNR Partnership has lost (and will continue to lose) substantial income.

74. Defendants’ wrongful interference in the business of the GNR Partnership was malicious, fraudulent and oppressive, and undertaken in conscious disregard of Plaintiffs’ rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from similar future conduct.

75. Plaintiffs have been and, unless enjoined by this Court, will continue to be, damaged and irreparably harmed by Defendants’ acts of wrongful interference. Such irreparable harm constitutes an injury for which Plaintiffs have no adequate remedy at law. Accordingly, Plaintiffs are entitled to injunctive relief.

SIXTH CLAIM FOR RELIEF
(Interference with Contract Against Sanctuary, Sanctuary Management, Bravado and Does 1-10, inclusive)

76. Plaintiffs incorporate by reference paragraphs 1 through 75, above, as though fully set forth herein.

77. Slash, Duff and Axl are signatories to the Partnership Agreement, which is a valid, binding written contract.

78. Plaintiffs are informed and believe, and on that basis allege, that Sanctuary, Sanctuary Management, Bravado and Does 1 through 10, and each of them, at all relevant times alleged herein, knew of the existence and terms of the Partnership Agreement; knew of Axl’s withdrawal from the Partnership; knew that the GNR Songs were registered in the name of Guns N’ Roses Music; and knew that the GNR Partnership possessed the exclusive right to license and otherwise exploit the GNR Songs, GNR Marks and GNR Merchandise

79. Plaintiffs are informed and believe, and on that basis allege, that Sanctuary, Sanctuary Management, Bravado and Does 1 through 10, and each of them, induced, encouraged, conspired with and/or persuaded Axl to breach and/or materially disrupt his contract with Slash and Duff, including by persuading Axl to purport to transfer and assign rights in and to the GNR Songs, GNR Marks and GNR Merchandise to Defendants.

80. As a result of such intentional and wrongful interference with the contract and business relationship between Axl and Slash and Duff, Plaintiffs have been damaged in a currently unascertained amount.

81. Sanctuary, Sanctuary Management, Bravado’s wrongful interference with the Partnership Agreement and the business of the GNR Partnership was malicious, fraudulent and oppressive, and undertaken in conscious disregard of Plaintiffs’ rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from similar future conduct.

82. Plaintiffs have been and, unless enjoined by this Court, will continue to be, damaged and irreparably harmed by Defendants’ acts of wrongful interference. Such irreparable harm constitutes an injury for which Plaintiffs have no adequate remedy at law. Accordingly, Plaintiffs are entitled to injunctive relief.

SEVENTH CLAIM FOR RELIEF
(Violation of the Unfair Competition Law, Business & Professions Code § 17200, et seq. Against All Defendants and Does 1-10, inclusive)

83. Plaintiffs incorporate by reference paragraphs 1 through 82, above, as though fully set forth herein.

84. Defendants’ aforementioned actions constitute unfair competition in violation of Section 17200 of the Business and Professions Code, as they are disrupting the Partnership’s business, unfair, unlawful, fraudulent and likely to deceive the public.

85. Plaintiffs, and the public, have been, and unless enjoined by this Court, will continue to be, damaged and irreparably harmed by Defendants’ acts of unfair competition. Such irreparable harm constitutes an injury for which Plaintiffs have no adequate remedy at law. Accordingly, Plaintiffs are entitled to injunctive relief ordering Defendants to cease their unfair and illegal practices.

EIGHTH CLAIM FOR RELIEF
(Declaratory Relief Against All Defendants and Does 1-10, inclusive)

86. Plaintiffs incorporate by reference paragraphs 1 through 85, above, as though fully set forth herein.

87. An actual controversy has arisen, and now exists, between Plaintiffs and Defendants concerning their respective rights and duties with respect to three contracts: (1) the Sanctuary Agreement; (2) the Bravado Agreements; and (3) the Partnership Agreement.

88. Plaintiffs desire a judicial determination with respect to the Sanctuary Agreement, pursuant to 28 U.S.C. § 2201, that: (1) Defendants had and have no authority to act on behalf of the GNR Partnership; (2) Defendants had and have no authority to authorize the use and exploitation of the GNR Songs and copyrights owned and controlled by the GNR Partnership; (3) Defendants had and have no authority to control, administer, or enter into license or sublicense agreements with respect to the sale or exploitation of GNR Songs; (4) Defendants had and have no authority to collect revenue from the sale or other exploitation of GNR Songs; (5) Defendants must account to Plaintiffs with respect to all revenues generated by the administration, licensing, sale or other exploitation of the GNR Songs or copyrights therein, and pay all such revenues to Plaintiffs with interest; and (6) the Sanctuary Agreement is void or voidable, at least to the extent it purports to grant or convey rights pertaining to GNR Songs.

89. Plaintiffs desire a judicial determination with respect to the Bravado Agreement, pursuant to 28 U.S.C. § 2201, that: (1) Defendants had and have no authority to act on behalf of the GNR Partnership; (2) Defendants had and have no authority to authorize the use and exploitation of the GNR Marks and GNR Merchandise; (3) Defendants had and have no authority to control, administer, or enter into license or sublicense agreements with respect to the sale or exploitation of GNR Merchandise or GNR Marks; (4) Defendants had and have no authority to collect revenue from the sale or other exploitation of GNR Merchandise and GNR Marks; (5) Defendants must account to Plaintiffs with respect to all revenues generated by the administration, licensing, sale or other exploitation of GNR Merchandise and GNR Marks, and pay all such revenues to Plaintiffs with interest; and (6) the Bravado Agreements are void or voidable, at least to the extent they purport to grant or convey rights pertaining to GNR Merchandise or GNR Marks.

90. Plaintiffs desire a judicial determination with respect to the Partnership Agreement, pursuant to 28 U.S.C. § 2201, that: (1) following Axl’s withdrawal from the GNR Partnership in 1995, Slash and Duff are the only remaining partners in the GNR Partnership and Axl has no right to vote on any Partnership issues or, in the alternative, if he has a right to vote on any issue, Partnership decisions are made on a “majority rule” basis; (2) Defendants had and have no authority to act on behalf of the GNR Partnership; (3) Defendants had and have no authority to authorize the use and exploitation of the GNR Songs, copyrights owned and controlled by the GNR Partnership, GNR Marks and GNR Merchandise; (4) Defendants had and have no authority to control, administer, or enter into license or sublicense agreements with respect to the sale or exploitation of GNR Songs, GNR Merchandise, or GNR Marks; (5) Defendants had and have no authority to collect revenue from the sale or other exploitation of GNR Songs, GNR Merchandise and GNR Marks; and (6) Defendants must account to Plaintiffs with respect to all revenues generated by the administration, licensing, sale or other exploitation of GNR Merchandise, GNR Marks, and GNR Songs or copyrights therein, and pay all such revenues to Plaintiffs with interest.

NINTH CLAIM FOR RELIEF
(Unjust Enrichment Against All Defendants and Does 1-10, inclusive)

91. Plaintiffs incorporate by reference paragraphs 1 through 90, above, as though frilly set forth herein.

92. Defendants have realized substantial monetary gain and benefit from interfering with the business opportunities of the GNR Partnership, and from the conduct alleged above, including by wrongfully engaging in the exploitation of GNR Songs, GNR Marks and GNR Merchandise; wrongfully collecting revenues, commissions, fees, advances and other benefits from the exploitation of GNR Songs, GNR Marks and GNR Merchandise; and wrongfully directing third-parties to pay Axl’s purported “share” of revenue generated from the exploitation of GNR Partnership assets directly to Defendants rather than to the GNR Partnership, thereby evading applicable Partnership expenses and deductions.

93. Defendants have been unjustly enriched to the damage, detriment and exclusion of Plaintiffs in a currently unascertained amount. It would be fundamentally unjust and unfair to allow Defendants to retain the benefits they received in such manner, and all such money must be paid to the GNR Partnership.

TENTH CLAIM FOR RELIEF
(Accounting Against All Defendants and Does 1-10, inclusive)

94. Plaintiffs incorporate by reference paragraphs 1 through 93, above, as though fully set forth herein.

95. By virtue of the claims and allegations above, and the terms of the Partnership Agreement, Plaintiffs are entitled to a full and complete accounting from Defendants, and each of them, with respect to all sales, licenses, sublicenses, contracts, agreements, directives, revenues, commissions, advances, royalties, and other consideration generated from or relating to the exploitation of the GNR Songs, GNR Merchandise, GNR Marks and all other assets of the GNR Partnership.

WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them, as follows:

ON THE FIRST CLAIM FOR RELIEF
(Copyright Infringement Re: Sanctuary Agreement)

For all damages recoverable under the Copyright Act, including damages resulting from Defendants’ infringement of GNR’s copyrights in the GNR Songs and profits attributable to Defendants’ infringement in an amount to be determined at trial. For an accounting of all gains, profits and advantages Defendants derived, and continue to derive from their infringement of GNR’s copyrights. For disgorgement of all gains, profits and advantages Defendants derived and continue to derive from their infringement of GNR’s copyrights. In addition, and/or in the alternative and at Plaintiffs’ election, for an award of enhanced statutory damages pursuant to 17 U.S.C. § 504(c). For recovery of Plaintiffs’ attorneys’ fees and costs of suit pursuant to 17 U.S.C. § 505. For an injunction directing Defendants, and their attorneys, representatives, agents and anyone acting in concert with them, to: (1) cease infringing the copyrights in the GNR Songs in any manner and publishing, displaying, disseminating, selling, marketing, or otherwise exploiting any materials or merchandise that infringes upon the copyrights in the GNR Songs; (2) refrain from representing to existing and prospective licensees, sublicensees and third-parties that Defendants have the right or authority to administer, exploit, use, sell and/or grant licenses relating to the GNR Songs; (3) refrain from interfering with the GNR Partnership’s administration, control and exploitation of GNR Songs; (4) refrain from soliciting or accepting any money or other benefit derived from the exploitation of any of the GNR Songs, except monies paid directly from the GNR Partnership; (5) refrain from entering into license or sublicense agreements relating to the GNR Songs; (6) refrain from representing to third parties that the Sanctuary Agreement is valid and enforceable to the extent it purports to convey rights to use, administer, exploit or collect revenues from GNR Songs; and (7) hold all funds paid to Defendants by any licensee, sublicense, society or any other party in constructive trust on behalf of the GNR Partnership, to the extent such funds are derived from the use or exploitation of any GNR Songs.

ON THE SECOND CLAIM FOR RELIEF
(False Designation of Origin)

For all damages recoverable under the Lanham Act, including damages resulting from Defendants’ false designation of origin in an amount to be determined at trial. For an accounting of all gains, profits and advantages Defendants derived, and continue to derive from their false designation of origin. For an award of treble the amount of actual damages suffered by Plaintiffs. For an award of reasonable attorney’s fees under 15 U.S.C.A. § 1117(a). For a preliminary and permanent injunction pursuant to the powers granted to the Court under 15 U.S.C.A. § 1116, enjoining and restraining Defendants and their agents, servants, employees or others acting in concert with them from: (1) directly or indirectly using the GNR Marks or any other mark similar to the GNR Marks which are likely to cause confusion, mistake or to deceive; (2) refrain from representing to existing and prospective licensees, sublicensees and third-parties that Defendants have the right or authority to administer, exploit, use, sell and/or grant licenses relating to the GNR Merchandise and GNR Marks; (3) refrain from interfering with the GNR Partnership’s administration, control and exploitation of the GNR Marks and GNR Merchandise; (4) refrain from soliciting or accepting any money or other benefit derived from the exploitation of any of the GNR Marks and GNR Merchandise; (5) refrain from exploiting, selling or offering to sell or license GNR Merchandise or GNR Marks; (6) refrain from entering into license or sublicense agreements relating to the GNR Merchandise or GNR Marks; (7) refrain from representing to third parties that the Bravado Agreement is valid and enforceable to the extent it purports to convey rights to use, administer, exploit or collect revenues from the GNR Marks and GNR Merchandise; and (8) hold all funds paid to Defendants by any licensee, sublicense, society or any other party in constructive trust on behalf of the GNR Partnership, to the extent such funds are derived from the use or exploitation of any GNR Marks, GNR Merchandise or any other asset of the GNR Partnership.

ON THE THIRD CLAIM FOR RELIEF
(Use of Likeness (Civil Code Section 3344))

For all damages recoverable under California Civil Code Section 3344, including the greater of statutory damages in the sum of $750 or general and special damages in an amount to be determined at trial, according to proof, and for an award of all profits earned by Defendants from their use of Slash’s and Duff's images, photographs and/or likenesses. For punitive damages. For a preliminary and permanent injunction to enjoin and restrain Defendants from any further use of Slash’s and Duff's images, photographs and/or likenesses. For attorneys’ fees and costs.

ON THE FOURTH CLAIM FOR RELIEF
(Common Law Misappropriation of Likeness)

For general and special damages in an amount to be determined at trial, according to proof and for punitive damages. For a preliminary and permanent injunction to enjoin and restrain Defendants from any further use of Slash’s and Duff’s images, photographs and/or likenesses.

ON THE FIFTH CLAIM FOR RELIEF
(Interference With Prospective Economic Advantage)

For damages in an amount to be determined at trial, according to proof and for punitive damages. For a preliminary and permanent injunction enjoining and restraining Defendants, their officers, directors, principals and agents, servants, employees, successors and assigns, and all those acting in concert or participation with them, from engaging in such acts of interference with Plaintiffs’ prospective economic advantage.

ON THE SIXTH CLAIM FOR RELIEF
(Interference with Contract)

For damages in an amount to be determined at trial, according to proof and for punitive damages. For a preliminary and permanent injunction enjoining and restraining Defendants, their officers, directors, principals and agents, servants, employees, successors and assigns, and all those acting in concert or participation with it, from engaging in such acts of interference with Plaintiffs’ contractual relations.

ON THE SEVENTH CLAIM FOR RELIEF
(Unfair Competition)

For all relief recoverable under California’s Unfair Competition Law, including, pursuant to Section 17203 of the California Business and Professions Code, for disgorgement of any profits generated by Defendants as a result of their unfair, unlawful and/or fraudulent activities, restitution of any funds obtained from, diverted from or on account of Plaintiffs, and any injunctive or other equitable relief the Court deems just and appropriate to remedy and prevent further acts of unfair competition.

ON THE EIGHTH CLAIM FOR RELIEF
(Declaratory Relief)

For a declaration with respect to the Sanctuary Agreement that: (1) Defendants had and have no authority to act on behalf of the GNR Partnership; (2) Defendants had and have no authority to authorize the use and exploitation of the GNR Songs and copyrights owned and controlled by the GNR Partnership; (3) Defendants had and have no authority to control, administer, or enter into license or sublicense agreements with respect to the sale or exploitation of GNR Songs; (4) Defendants had and have no authority to collect revenue from the sale or other exploitation of GNR Songs; (5) Defendants must account to Plaintiffs with respect to all revenues generated by the administration, licensing, sale or other exploitation of the GNR Songs or copyrights therein, and pay all such revenues to Plaintiffs with interest; and (6) the Sanctuary Agreement is void or voidable, at least to the extent it purports to grant or convey rights pertaining to GNR Songs.

For a declaration with respect to the Bravado Agreements that: (1) Defendants had and have no authority to act on behalf of the GNR Partnership; (2) Defendants had and have no authority to authorize the use and exploitation of the GNR Marks and GNR Merchandise; (3) Defendants had and have no authority to control, administer, or enter into license or sublicense agreements with respect to the sale or exploitation of GNR Merchandise, or GNR Marks; (4) Defendants had and have no authority to collect revenue from the sale or other exploitation of GNR Merchandise and GNR Marks; (5) Defendants must account to Plaintiffs with respect to all revenues generated by the administration, licensing, sale or other exploitation of GNR Merchandise and GNR Marks, and pay all such revenues to Plaintiffs with interest; and (6) the Bravado Agreements are void or voidable, at least to the extent they purport to grant or convey rights pertaining to GNR Merchandise or GNR Marks.

For a declaration with respect to the Partnership Agreement that: (1) following Axl’s withdrawal from the GNR Partnership in 1995, Slash and Duff are the only remaining partners in the GNR Partnership and Axl has no right to vote on any Partnership issues or, in the alternative, if he has a right to vote on any issue, Partnership decisions are made on a “majority rule” basis; (2) Defendants had and have no authority to act on behalf of the GNR Partnership; (3) Defendants had and have no authority to authorize the use and exploitation of the GNR Songs, copyrights owned and controlled by the GNR Partnership, GNR Marks and GNR Merchandise; (4) Defendants had and have no authority to control, administer, or enter into license or sublicense agreements with respect to the sale or exploitation of GNR Songs, GNR Merchandise, or GNR Marks; (5) Defendants had and have no authority to collect revenue from the sale or other exploitation of GNR Songs, GNR Merchandise and GNR Marks; and (6) Defendants must account to Plaintiffs with respect to all revenues generated by the administration, licensing, sale or other exploitation of GNR Merchandise, GNR Marks, and GNR Songs or copyrights therein, and pay all such revenues to Plaintiffs with interest.

ON THE NINTH CLAIM FOR RELIEF
(Unjust Enrichment)

For damages and restitution in an amount to be determined at trial, according to proof.

ON THE TENTH CLAIM FOR RELIEF
(Accounting)

For an accounting from Defendants, and each of them, with respect to all sales, licenses, sublicenses, contracts, agreements, directives, revenues, commissions, advances, royalties, and other consideration generated from or relating to the exploitation of the GNR Songs, GNR Merchandise, GNR Marks and all other assets of the GNR Partnership.

1. For interest on all amounts at the maximum legal rate;
2. For attorneys fees as permitted by law, statute and/or contract;
3. For costs of suit incurred herein; and
4. For such other and further relief as the Court may deem just and proper.

Plaintiffs Saul Hudson p/k/a Slash, Michael McKagan p/k/a Duff and Guns N’ Roses, and each of them, hereby demand a jury trial.

PROCEEDINGS: DEFENDANTS W. AXL ROSE AND BLACK FROG ENTITIES, INC.'S MOTION TO DISMISS PORTIONS OF THE FIRST AMENDED COMPLAINT PURSUANT TO FRCP 12(b)(6) (filed 04/07/08); AND DEFENDANTS W. AXL ROSE AND BLACK FROG ENTITIES, INC.'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT (filed 04/07/08)

Hearings are held. The tentative ruling is adopted as the Court’s final ruling (attached hereto). Defendants W. Axl Rose and Black Frog Entities, Inc.'S Motion to Dismiss Portions of the First Amended Complaint Pursuant to FRCP 12(b)(6), and Defendants W. Axl Rose and Black Frog Entities, Inc.'s Motion to Strike Portions of Plaintiffs' First Amended Complaint, are denied.

Defendants shall have 15 days from the date of this order to file an answer to the complaint and a cross claim.

I. INTRODUCTION

This case for copyright infringement, trademark infringement, and related state law claims was originally filed on July 30, 2007. The case turns on provisions in a partnership agreement among Plaintiffs Saul Hudson, p/k/a “Slash” (“Slash”). Michael McKagan, p/k/a “Duff' (“Duff’) - who are suing on behalf of themselves and the Guns N’ Roses partnership - and Defendant W. Axl Rose (“Axl”). The individual plaintiffs are former members of the successful rock band, Guns N’ Roses. Axl, who was assigned the right to the band's name when he became a “Terminated Partner” under the partnership agreement, is a current member of Guns N' Roses. Various management, publishing, and merchandising entities are also being sued.

The First Amended Complaint (“FAC”) was filed on January 28, 2008. The Answer of Defendants Sanctuary Music Publishing Limited, Sanctuary Group, Inc., Sanctuary Kobalt (W.A.R.) Limited, Sanctuary Artist Management, Inc. (together. ''Sanctuary"), Bravado International Group, Limited, and Bravado International Group Merchandising Services (together, “Bravado”) was filed on February 11, 2008. On April 7, 2008, Defendants Axl and Black Frog Entities. Inc. (“Black Frog”), filed the current Motions to Dismiss and to Strike Portions of the FAC.

For the following reasons, the motions are DENIED.

II. BACKGROUND

The allegations relevant to the instant motions are as follows. In 1984, Axl, Slash, and Duff, along with other individuals, formed (via an oral partnership agreement) a California general partnership known as Guns N’ Roses Music (“the Partnership”). FAC ¶ 14. By 1992, Axl, Slash, and Duff were the only remaining partners. FAC ¶ 15. On September 1, 1992, Axl, Slash, and Duff entered into a written partnership agreement entitled "Memorandum of Agreement” ("Partnership Agreement”). FAC ¶ 16. The Partnership Agreement affirmed formation of the partnership in 1984 and defined the rights and obligations of the partners. Id.: FAC Ex. A. The Partnership Agreement provided that if any partner was expelled or voluntarily withdrew from the Partnership, he would be entitled to receive only specified shares of certain revenues of the Partnership (e.g.. his net share of recording and publishing income, but not merchandising). FAC ¶ 17. The Partnership Agreement also provided that a Terminated Partner would have “no right or interest whatsoever in the Group Name or in the good will owned by or associated with the Partnership.” FAC Ex A at F4(d). However, a footnote to that provision (which appears to have been added after the original text was drafted but before the parties’ signing) states:

Notwithstanding anything to the contrary contained herein, in the event that Axl shall be the Terminated Partner or in the event that Slash and Duff shall be Terminated Partners, Axl shall own and shall have the right to use the Group Name, and thereafter neither the Partnership nor the Partners other than Axl shall have any right to use the Group Name.
Id.

On August 31, 1995, Axl sent Duff and Slash a written notice informing them of his withdrawal from the Partnership, effective December 30, 1995, and that he intended to use the Guns N’ Roses name to form a new band. FAC ¶ 18; Ex. B. Under the terms of the Partnership Agreement, upon his withdrawal from the Partnership, Axl became a “Terminated Partner.” FAC ¶ 20. Plaintiffs Slash and Duff allege that they both remained members of the Partnership, which owns and controls all of the assets of the partnership, including (1) the copyrights in Guns N' Roses songs written prior to December 30, 1995 (“GNR Songs”), (2) logos, artwork, and marks created and used by Guns N’ Roses prior to December 30, 1995 (“GNR Marks”), and (3) the right to license control, and exploit GNR Songs, GNR Marks, and merchandise bearing GNR Marks (“GNR Merchandise”). FAC ¶ 19.
Plaintiffs allege that Sanctuary induced or caused Axl “directly and/or through his company [Black Frog]” to enter into a merchandising agreement with Bravado (an affiliate of Sanctuary) regarding merchandising rights for the new Guns N’ Roses band. FAC ¶ 23. The merchandising agreement specifically excluded GNR Marks. Id. Beginning in 2004, however, Bravado started selling or authorizing the sale of merchandise bearing GNR marks. FAC ¶ 24. In March 2006, Sanctuary and/or Bravado allegedly induced Axl to sign a letter stating that he had, in 2004, granted “a separate non-exclusive worldwide license” to Bravado to manufacture, sell, and distribute “historic GNR artwork.” Id. Plaintiffs allege that Defendants have received over $4,000,000 from such sales. Id. The FAC also includes allegations relating to Defendants’ alleged unauthorized exploitation and interference with the exploitation of copyrights in the GNR Songs. See FAC ¶¶ 29-38.

The FAC asserts the following claims for relief: (1) Copyright Infringement; (2) False Designation of Origin [15 U.S.C. § 1125(a)]; (3) Violation of Cal. Civ.Code § 3344 (unauthorized commercial use of name, voice, signature, photograph or likeness); (4) Common Law Misappropriation of Likeness); (5) Interference with Prospective Economic Advantage; (6) Interference with Contract; (7) Violation of California's Unfair Competition Law; (8) Declaratory Relief: (9) Unjust Enrichment; and (10) Accounting. Axl and Black Frog are named in the First, Second, Fifth, Seventh, Eighth, Ninth, and Tenth claims for relief, and now move to dismiss as to the Second, Fifth and Seventh causes of action. In addition, they move to strike all references to “Guns N” Roses" as a party plaintiff in the FAC.

III. MOTION TO STRIKE

Rule 12(f) of the Federal Rules of Civil Procedure provides that a party may move to strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter." As a general matter, motions to strike are regarded with disfavor. See. Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial § 9:375, p. 9-112 (The Rutter Group 2008). A motion to strike may be granted where granting the motion “... will make the trial less complicated or otherwise streamline resolution of the action.” Id.

Defendants' Motion to Strike is based on the provision of the Partnership that entitles Axl to use, and ostensibly forbids the remaining partners from using, the “Group Name.” Defendants contend that “motions to strike have frequently been used to strike the name of a party that was wrongfully named as a plaintiff or a defendant in a compliant” (Motion to Strike 6:14-15), but. as Plaintiffs note, the cases they cite are almost wholly inapposite. See. e.g„ Clougherty v. James Vernor Co., 187 F.2d 288 (6th Cir. 1951) (finding that it was proper to strike names of 177 individuals from Complaint where Plaintiff admitted in open court that he had no authority to act for the 177 individuals). Here, the partnership referenced in the Agreement appears not to have been dissolved and, hence, is still in existence. See, FAC Ex. A at Vs 4(g) and 5(a). Therefore, until there is an order barring its participation, it is a viable party. While there may be an issue as to whether it should be called the "Guns N’ Roses” partnership, that dispute cannot be resolved in the present motion to strike with the current record. Moreover, granting the motion would not in any way make the trial less complicated or streamline resolution of the action (rather, it would have the opposite effect), and Defendants’ argument that Axl will suffer prejudice if the name of the Partnership is not stricken is frankly unconvincing.

Plaintiffs correctly observe that Defendants, by their motion, are really seeking an adjudication in their favor of numerous issues - such as, for example, whether the Agreement bars the Partnership from operating under the name “Guns N’ Roses,” and whether Axl’s challenge to the partners name is not barred by waiver, estoppel, or laches. It is noted that this is apparently the first time this argument has ever been raised in the litigious aftermath of this band. See Plaintiff's Request for Judicial Notice, Exs. 1 - 6. The motion is procedurally improper and will be denied.

IV. MOTION TO DISMISS

A. False Designation of Origin

15 U.S.C. Section 1125(a) provides that
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Defendants offer two separate challenges to Plaintiffs’ claim under § 1125(a). First, they argue that the Partnership Agreement, which is attached to the FAC, “demonstrates that Plaintiffs have no rights to the name, goodwill, or merchandise revenues.” so they could not have been damaged. Second, they argue that “the judicially admitted facts establish that there is no possibility of confusion as to the source of the merchandise.” The second argument goes so clearly to the merits that it will not be further addressed.

Returning again to ¶ 4(d) of the Partnership Agreement, the paragraph, in its entirety, states:
From and after the Termination Date or the Expulsion Date, as applicable, the Terminated Partner shall not make use of the name “Guns N’ Roses (hereinafter the "Group Name”) or any substantially similar name or designation in any medium or commercial manner whatsoever. From and after the Termination Date [* unless the terminated partner is Axl], the Partnership, as thereafter constituted, shall be the sole and exclusive owner of all right, title and interest in the Group Name. The Terminated Partner [* unless the terminated partner is Axl] shall have no right or interest whatsoever in the Group Name or in the good will owned by or associated with the Partnership. [** Notwithstanding anything to the contrary contained herein, in the event that Axl shall be the Terminated Partner or in the event that Slash and Duff shall be Terminated Partners, Axl shall own and shall have the right to use the Group Name, and thereafter neither the Partnership nor the Partners other than Axl shall have any right to use the Group Name.]..

Defendants’ contention that this provision must be read as depriving Plaintiffs of any rights to merchandise revenues is, at this time, unpersuasive. Their argument, essentially, is that because trademark rights are derivative of the name, the GNR Marks were contractually transferred to Axl “along with the exclusive rights to the name [together with] the good will owned by or associated with the Partnership.” (Motion to Dismiss 5:27 - 6:1).

To the extent that Defendants are arguing that, under the “‘plain language” of the Agreement, both the Group Name and “goodwill owned by or associated with the Partnership” were transferred to Axl, the argument will, for purposes of this motion, be rejected. Moreover, the Agreement states fairly clearly that the GNR Marks would continue to be held by the Partnership (which may, among other things, militate against reading the Agreement as effecting a transfer of goodwill along with the name). As Plaintiffs argue, at most the contract is ambiguous. (Actually, it certainly is ambiguous). Where contractual language is ambiguous, construction of the ambiguous provisions “‘... is a factual determination that precludes dismissal on a motion for failure to state a claim.’” Conf 1 Airlines. Inc, v. Mundo Travel Corp.. 412 F. Supp. 2d 1059,1066 (E.D. Cai. 2006) (quoting Martin Marietta Corp, v. Int'l Telecomms. Satelite Org., 991 F.2d 94, 97 (4th Cir. 1992)).

Defendants, however, also have an argument under trademark law in addition to their argument from the contract language. The issue, then, becomes whether transfer of the Group Name necessarily entailed transfer of goodwill. It is doubtful that this issue can be properly resolved at the pleading stage.

Under the facts as pleaded, the FAC withstands a motion to dismiss the trademark claim. Although generally an "assignment in gross” of a trademark is invalid, see J. Thomas McCarthy, McCarthy on Trademarks, § 18:1. p. 18-5 (West 2007), Plaintiffs dispute that good will was automatically transferred along with the right to use the Group Name. Rather, Plaintiffs argue, Axl could have been assigned the Group Name "in gross” - a valid assignment as between the assignor and the assignee - to begin to develop secondary meaning and good will separate from '‘the good will earned and trademarks created while Slash, Duff, and Axl comprised the Original Band.” (Opposition to Motion to Dismiss 14: 3-4). A better argument, perhaps is that the total good wall of a business need not be assigned in order for a trademark assignment to be valid. See McCarthy § 18:21, p. 1844. This is likely to prove to be a gnarly issue, but the complaint is sufficient to withstand a Rule 12(b)(6) motion. The point is just that there is some version of the facts under which a Lanham Act claim can (and will at this point) survive.

B. Interference with Prospective Economic Advantage

Intentional interference with prospective economic relations requires: (1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and, (5) damages to plaintiff proximately caused by defendant's conduct. Settimo Assoc.’s v. Environ Systems. Inc.. 14 Cal. App. 4th 842, 845 (1993). The plaintiff must plead facts showing wrongful conduct beyond the interference itself. Della Penna v. Toyota Motor Sales, Inc., 11 Cal. 4th 376. 378-79, 392-93 (1995).

Here, as Plaintiffs argue in their opposition:
The FAC alleges that the Partnership owns the exclusive rights to exploit the GNR Marks, the GNR Merchandise and the copyrights in the GNR Songs. (FAC ¶¶ 25, 31). The Partnership regularly receives license requests to use the GNR Songs in movies, commercials, television programs and ringtones in exchange for substantial license fees. (FAC ¶ 32). The FAC alleges that Axl entered into agreements with Sanctuary and Bravado, purporting to license the rights to exploit these valuable Partnership assets to the exclusion of the Partners. (FAC ¶ 33 ). The FAC alleges that millions of dollars in Partnership revenues have been diverted to Sanctuary and Bravado pursuant to the rights Axl purported to assign to them. (FAC ¶ 26, 35). The FAC alleges that Axl was acting in concert with, and/or was the agent and/or coconspirator of Sanctuary and Bravado in these and all other wrongful acts. (FAC ¶ 13).
(Opposition to Motion to Dismiss 19: 11-22). These allegations, together with the allegations of trademark infringement and copyright infringement, are sufficient to state a claim.

C. Cal. Bus. & Prof. Code § 17200, et seq.

As Defendants note, “[a]n action for unfair competition under § 17200 is ‘substantially congruent’ to a trademark infringement claim under the Lanham Act.’’ Academy of Motion Picture Arts & Sciences v. Creative House Promotion. Inc., 944 F. 2d 1446,1457 (9th Cir. 1991). As Plaintiffs’ claim for false designation of origin has withstood Defendants’ motion to dismiss, so, too, does their UCL claim.

V. CONCLUSION

For the above reasons, Defendants’ Motions to Dismiss and to Strike are DENIED. That said, this entire dispute would be better resolved by a new agreement between the parties (to replace the old, obviously defective one) rather than through protracted and expensive litigation.<sup>1

1</sup> The Partnership Agreement appears to contain an indemnification/attorney’s fees provision which may be applicable to the present dispute. See FAC Ex. A at ¶ 6.

1. Counter-Defendants Saul Hudson (“Slash") and Michael McKagan (“Duff”) filed their operative First Amended Complaint (“FAC”) against Counter-Claimant W. Axl Rose (“Axl”) and other defendants - their third such lawsuit in four years - as part of their greedy and desperate bid to abscond with extremely valuable property rights, including ownership and control of the copyrights to classic Guns N’ Roses’ (“GNR”) musical compositions, in addition to revenues derived from the exploitation of GNR’s trademarks. In the process, Slash and Duff have breached their fiduciary and contractual obligations, interfered with economic relationships, engaged in unfair business practices and converted property. As a result, Axl is entitled to compensatory and punitive damages, as well as dissolution of the partnership, declaratory and other relief against these Counter-Defendants. Additionally, Counter-Claimant Black Frog Entities, Inc. ("Black Frog”) is entitled to declaratory relief and damages for breach of contract.

2. All of the claims by Slash and Duff in their FAC are predicated on the demonstrably false theory that they are the sole remaining members of a partnership known as “Guns N' Roses" pursuant to a September 1, 1992 “Memorandum of Agreement” - referred to as the “Partnership Agreement" at ¶ 16 of their FAC in this action, which they have also attached to the FAC. While the Partnership Agreement clarifies certain rights and obligations of the parties (e.g., it establishes how Axl became the exclusive owner of the name “Guns N’ Roses,” and all rights attendant thereto, an uncontrovertable fact reluctantly conceded by Slash and Duff through their pleadings in this action), the facts overwhelmingly establish that Slash and Duff are not the sole remaining partners of the "partnership” that owns and controls the rights that they are now claiming.

3. A partnership in the name “Guns N’ Roses” was never formally established, however, the name was occasionally utilized on an ad hoc basis strictly as a matter of convenience for the group and others to refer to the business of the group. Nor does the “Partnership Agreement” identify the name of the partnership as “Guns N’ Roses.”

4. On or about August 31,1995, Axl sent a letter to Slash and Duff that he was withdrawing from the “partnership” on December 30, 1995 in accordance with ¶ 4(d) of the Partnership Agreement.

5. Sometime after Axl’s withdrawal from the “partnership,” one of several legal interpretations of the events occurred: (a) a new “partnership” which included Axl, Slash and Duff was formed; (b) a new “partnership” consisting solely of Axl and Duff was formed; or, (c) Axl was deemed readmitted to the “partnership.” This is alleged in the alternative because the parties, including Axl, Slash and Duff, as various events occurred, acted as if Axl was part of a new partnership or was re-admitted to the partnership. Regardless of the legal interpretation of the events that occurred, Slash and Duff never acted in a manner that lead to the conclusion that Axl had no rights as a partner in the “partnership."

6. Slash definitely did not continuously remain in the “partnership,” something his attorney at the time, Mitchell Tenzer, confirmed in a letter to the business manager for the “partnership” on May 23,1996, in which he stated:
“As you know, Slash is apparently being charged with various Guns N’ Roses partnership expenditures incurred since the first of the year even though he is no longer a party to the Guns N’ Roses partnership agreement." (Emphasis supplied.)
This admission that Slash was no longer a party to the Guns N’ Roses partnership agreement establishes that Slash did not continuously remain in the “partnership.”

7. While numerous other documents obliterate Slash’s and Duff’s claim that they were the only remaining “members of the GNR Partnership” (FAC, ¶ 19), no one document reveals the complete fallacy and fraud of Slash’s and Duff’s claim that they are the sole remaining partners as much as the publishing agreement between Guns N’ Roses Music and Muziekuitgeverij Artemis B.V. (“Artemis”) dated December 15, 1998 (“the 1998 Artemis Agreement”).

8. To begin with, the 1998 Artemis Agreement was signed by W. Axl Rose, “Authorized Signatory” of “Guns N’ Roses Music, A California Partnership.” Thus, only one of three conclusions is possible as of December 1998: (a) Axl was authorized to sign because he was deemed re-admitted to the partnership; (b) a new partnership which included Axl, Slash and Duff had been formed; or, (c) Slash and Duff intended to defraud Artemis.

9. Lest Slash and Duff try to deny that they were aware that Axl -and Axl alone-was entering into a multi-million dollar deal on behalf of “Guns N’ Roses Music, A California Partnership” in 1998, the documentation leading up to the execution of the 1998 Artemis Agreement unequivocally establishes that they ratified Axl’s actions on behalf of “Guns N’ Roses Music, A California Partnership.” For example, one of the drafts of that agreement had three signature blocks (i.e., one each for Axl, Slash and Duff). Subsequently, the agreement was revised to eliminate the three signature blocks so that only Axl signed on behalf of the partnership after letters confirming Slash’s and Duff’s final approval of the terms were sent by Mitchell Tenzer, Slash’s attorney, and Gary Gilbert, Duff’s attorney. Slash and Duff were even copied on these letters and thus acknowledged that Axl was signing on behalf of “Guns N’ Roses Music, A California Partnership.” As a result, it is eminently clear that Slash’s and Duff’s claim that they are the only remaining members of the “partnership” is an outright fraud on the Court.

10. Numerous letters also confirm that Slash and Duff did not remain the sole remaining partners. For example, on February 9, 1998, Michael Oppenheim, the “partnership’s” business manager, wrote to Doug Goldstein, GNR’s manager:
“Guns N’ Roses Partnership would remain intact with Axl and Duff as the remaining partners....The Guns N’ Roses Music Partnership account should remain in tact, a company owned by Axl, Slash and Duff.”

11. Further, on September 11, 1998, Michael Oppenheim wrote to Ken Hertz, the “partnership’s” attorney:
“As you know, your firm provides services to Guns N’ Roses that effect two different entities. One being the new Guns N’ Roses for which Axl is the only partner, and the other being the old Guns N’ Roses entities which includes Axl, Slash and Duff.”

12. In addition to the 1998 Artemis Agreement and numerous letters, Slash has signed tax returns on behalf of the "partnership” which not only identify Axl as a general partner, but also establish that Axl is the partner with the greatest partnership share; i.e., 36.33% as opposed to 33.33% for Slash and 30.33% for Duff.

13. It was only after many years, during which time Slash and Duff repeatedly and continuously represented to others that Axl was a partner and acted as if Axl was a partner, that Slash and Duff fabricated the scheme, which is the cornerstone of their FAC, in which they now allege that they were the sole remaining members of the “partnership.”

14. It is clear that Slash’s and Duff’s misguided plan has been implemented for the sole purpose of hijacking Axl’s rights to the musical compositions he co-wrote and to steal his trademark rights. The “land grab” by Slash and Duff, who are apparently frustrated by their inability to recapture the glory that has eluded them in their post-GNR careers, is unavailing. Axl is the partner in the “partnership” with the majority share. A declaration of his rights in connection with the partnership is required hereunder. Additionally, Slash and Duff have breached their obligations to Axl and violated his rights and Axl is entitled to damages against Slash and Duff as well as a dissolution of the partnership.

15. There is and can be no doubt that Axl and Black Frog Entities, Inc. own and control Axl's share of the GNR compositions. Axl, Slash and Duff (as well as Izzy Stradlin) signed a written co-administration agreement which clearly and unequivocally states that each of the individual band members, through their publishing companies, owns, and is entitled to administer, his share of the copyrights in the songs which they wrote together.

16. Axl’s ownership and right to control his own musical works, through Black Frog, was again affirmed by the opinion of a “pre-litigation” expert Duff hired to assist in making other claims against Axl.

17. On May 19, 2003, Robert E. Gordon, a Sausalito-based attorney who describes himself as having 40 plus years experience in the music industry and claims to have represented “many record companies, music publishers, major 'rock and roll’ artists, personal managers and agents, sent a letter to Glendon W. Miskel, Duff’s counsel of record herein, clearly and unequivocally opining that Axl owns and has the right to control his copyrights. Gordon stated:
“It is clear that each party maintains title to his share of the copyright in each song. . . . Except for the restrictions of paragraph 3 of [the Co-Administration Agreement], each of the parties to this Agreement has the right to administer his respective share during the full term of the worldwide copyright...“ (Emphasis added.)

18. In or about June of 1999, Axl, Slash and Duff agreed that any licensing requests would require unanimous approval, even though, arguably, as a legal matter, each of the parties had that right. This oral agreement superceded the Partnership Agreement and the co-administration agreement.

19. Subsequently, the parties repeatedly and consistently acted in accordance with the oral agreement - or what might be considered a fully executed oral modification of the prior written agreements - concerning any requests for licenses. Specifically, unanimous approval was, has been and is required for any requests to use the compositions which were co-written by Axl, Slash and Duff.

20. Slash and Duff are now attempting to repudiate their agreement because they are determined to strip-mine the GNR catalogue and grant licenses with reckless abandon. Accordingly, an appropriate declaration of the parties’ rights in this context is required to enforce this agreement.

21. Counter-Claimant W. Axl Rose (“Axl”) is an individual residing in Los Angeles County, California.

22. Counter-Claimant Black Frog Entities, Inc. (“Black Frog”) is a California corporation with its principal place of business in the County of Los Angeles, State of California.

23. Counter-Defendant Saul Hudson (professionally known as “Slash”) is an individual residing in Los Angeles County, California.

24. Counter-Defendant Michael McKagan (professionally known as “Duff’) is an individual residing in Seattle, Washington, who, at relevant times, has traveled to Los Angeles County, California in the course of his business and has committed wrongdoing in Los Angeles County, California.

25. Axl is unaware of the true names and capacities of the Counter-Defendants named as JOES 1 through 50, inclusive, and therefore sues the JOE Counter-Defendants by such fictitious names. Axl will seek leave to amend this Counterclaim to allege the Counter-Defendants’ true names and capacities, together with such other allegations as are appropriate, when they are ascertained.

26. Axl is informed and believes, and on that basis alleges, that each of the Counter-Defendants is, and at all relevant times was, the agent of the other Counter-Defendants in performing the acts alleged. Axl is further informed and believes, and on that basis alleges, that each of the Counter-Defendants has pursued a common course of conduct and aided and abetted one another to accomplish the acts alleged and each, therefore, is legally responsible for the acts of the other.

27. This Court has jurisdiction over this Counterclaim pursuant to 17 USC §§101, et seq., and 28 USC §§ 1331, 1338 and 1367.

28. Venue in this District is appropriate because all of the Counterclaim Defendants reside and/or transact business, or may otherwise be found in the Central District, and because a substantial part of the events and omissions giving rise to Axl's claims occurred there.

29. Axl and Black Frog hereby reallege and incorporate by reference paragraphs 1 through 28 above as though such allegations were set forth in their entirety herein.

30. During their collaboration, Axl, Slash, Duff and Stradlin co-wrote numerous musical compositions, including the huge GNR hits “Sweet Child O’ Mine,” “Welcome to the Jungle,” “Paradise City” and “November Rain,” amongst many others (the “Compositions”).

31. As a co-author of the Compositions, Axl is a joint owner of the rights therein. Axl never executed a written assignment of his copyright interests in the Compositions to Guns N' Roses Music, Slash, Duff or any Guns N' Roses partnership.

32. In or about April 1994, Axl, Slash, Duff and Stradlin entered into a written settlement agreement and mutual release (“Settlement Agreement”) to resolve disputes that arose between them after Stradlin left the band, and to establish protocols for the future exploitation of the Compositions.

33. At the same time, Axl, Slash, Duff and Stradlin, and their respective publishing company designees, entered into a written Co-Administration Agreement (the “Co-Administration Agreement”), which was attached to the Settlement Agreement as Exhibit F.

34. The Co-Administration Agreement contains an express recital affirming the parties’ intent that “the entire worldwide right, title and interest, including the copyright, the right to the copyright and the renewal right in and to the “Compositions” shall be jointly owned by Axl, Slash, Duff and Stradlin's respective publishing companies in agreed upon percentages set forth on written schedule.

35. The Co-Administration Agreement also contains an express recital affirming the parties’ “desire that each of them shall administer its respective interest in the Compositions upon all the terms and conditions contained therein.”

36. Consistent with the recitals, the parties expressly agreed in the Co-Administration Agreement that:
“The Publishing Companies, [defined as Axl’s, Slash’s, Duff’s and Stradlin’s respective publishing companies] shall jointly own the Compositions, in the shares above described, including all of the worldwide right, title and interest, including the copyright, the right to copyright and the renewal right therein and thereto.” (Co-Administration Agreement, p. 2, ¶ 1.)
and that:
"The parties hereto shall each have the right to administer their respective right in and to the Compositions throughout the world during the full term of the worldwide copyright, including renewals, but only in accordance with all the terms and conditions of this agreement The parties hereto shall each have the right, throughout the world, to enter into any and all non-excludive licenses and agreements with respect to the exploitation of mechanical reproduction rights and performing rights (subject to Paragraphs 4 and 5 hereof) as to their respective interests in the Compositions....” (Co-Administration Agreement, p.2, ¶ 3.)

37. The Co-Administration Agreement provides that it “cannot be changed, modified or canceled except by an instrument signed by the party sought to be bound.” Axl and Black Frog are informed and believe and thereon allege that there is no signed instrument canceling or modifying the Co-Administration Agreement.

38. Notwithstanding the unequivocal language of the Co-Administration Agreement, Slash and Duff have taken the wholly unjustified position that Axl, through Black Frog, do not own and have no right to administer his share of the copyrights in the Compositions. Indeed, Slash and Duff have gone so far as to sue Axl and Black Frog for allegedly infringing the copyrights in the Compositions.

39. An actual controversy now exists between Axl, Slash and Duff wherein Axl, through Black Frog, contend that he owns and has the right to administer his share of the copyrights in the Compositions and Slash and Duff contend to the contrary.

40. This claim did not accrue anytime prior to the past three years because until Slash and Duff brought their claims, neither Slash nor Duff expressly repudiated Axl’s right, through Black Frog, to administer his share of the copyrights in the Compositions in accordance with the Co-Administration Agreement. Therefore, this claim has been brought in a timely manner.

41. A judicial declaration is necessary and appropriate so that the parties may ascertain and know their rights with respect to the ownership and administration of the copyrights in the Compositions.

42. Axl and Black Frog hereby reallege and incorporate by reference paragraphs 1 through 41 above as though such allegations were set forth in their entirety herein.

43. Although Axl never executed a written assignment of his ownership interests in the copyrights to the GNR Compositions to Guns N’ Roses Music, copyright registrations for the Compositions were erroneously filed in the United States Copyright office identifying Guns N’ Roses Music as the copyright owner.

44. Axl is informed and believes and thereon alleges that Guns N’ Roses Music is not a legal entity, but is a name or “dba” under which Axl, Slash, Duff, Stradlin and Adler as individuals from time to time did business.

45. The Co-Administration Agreement expressly provides that the copyright registrations filed in the United States Copyright office in the name of Guns N’ Roses Music “shall be assigned” to each of the band members’ respective publishing companies in the shares set forth in the Co-Administration Agreement.

46. Paragraph 2 of the Co-Administration Agreement provides: "Inasmuch as the Compositions have heretofore been registered for copyright, the parties shall simultaneously herewith cause to be delivered such assignments of the appropriate interest in the copyright (i.e., title as shown in the records of the Copyright Office of the United States of America) with the percentages referred to hereinabove.”
47. Pursuant to paragraph 14 of the Co-Administration Agreement, the parties agreed to “execute any further documents including, without limitation, assignments of copyrights, and do all acts necessary to fully effectuate the terms and provisions of [the] agreement.”

48. Axl has performed all obligations required of him under the Co-Administration Agreement, except as may have been excused by the Counterclaim Defendants’ material breaches.

49. This claim did not accrue anytime prior to the past four years because until Slash and Duff brought their claims, neither Slash nor Duff expressly repudiated Axl’s right, through Black Frog, to administer his share of the copyrights in the Compositions in accordance with the Co-Administration Agreement. Therefore, this claim has been brought in a timely manner.

50. Slash and Duff breached and repudiated the Co-Administration Agreement by suing Axl and Black Frog for copyright infringement and by publicly claiming that Axl does not own and has no right to control the administration of his musical works.

51. As a result of Slash’s and Duff’s material breaches, Axl and Black Frog have suffered damages in an amount not presently ascertained, but which exceeds the jurisdictional limit of this Court.

52. Axl hereby realleges and incorporates by reference paragraphs 1 through 51 above as though such allegations were set forth in their entirety herein.

53. Axl acquired the exclusive rights to the use of the name “Guns N’ Roses” as well as the good will associated therewith when he exercised his right under ¶ 4(d) of the Partnership Agreement.

54. Slash and Duff have interfered with Axl’s rights to the trademarks by claiming, amongst other things, that they are the exclusive owners of all of the historic GNR merchandise rights.

55. An actual controversy exists regarding ownership of the trademark rights.

56. A judicial declaration is necessary and appropriate so that the parties may ascertain and know their rights with respect to the ownership and control of the trademark rights.

57. Axl hereby realleges and incorporates by reference paragraphs 1 through 56 above as though such allegations were set forth in their entirety herein.

58. Axl is and at all times during the course of relevant events hereunder was a partner in the Guns N’ Roses Partnership - whether identified as “Guns N’ Roses,” “Guns N’ Roses Music,” or by any other name - and whether (a) a new “partnership” which included Axl, Slash and Duff was formed; (b) a new “partnership” consisting solely of Axl and Duff was formed; or, (c) Axl was deemed re-admitted to the “partnership.”

59. As partners, Slash and Duff owed fiduciary duties to Axl.

60. Slash and Duff breached their fiduciary duties by, amongst other things, consistently and repeatedly making false claims and allegations about Axl that were unrelated to any litigation in an effort to damage Axl’s professional career including but not limited to false accusations that Rose was responsible for the break-up of Guns N’ Roses; lying about the formation of the band and Rose's commitment to its music; falsely accusing Rose of canceling shows; attempting to discourage musicians from working with Rose; and disparaging Rose’s work ethic, commitment to the band’s fans, contributions as a songwriter and performer, and vision for the band’s future; and interfering with Axl’s rights to control his own interest in his copyright rights.

61. Slash’s and Duff’s actions were done with the intent to harm Axl in his business.

62. As the direct and legal result of the aforementioned breach of fiduciary duty by Slash and Duff, Axl has sustained damages in an amount to be determined at the time of trial of at least $5,000,000.

63. Slash’s and Duff’s conduct described herein was fraudulent, knowing, willful, and with malicious intent and, as a result, Axl is entitled to punitive damages in an amount to be determined by proof at trial.

64. Axl hereby realleges and incorporates by reference paragraphs 1 through 63 as though such allegations were set forth in their entirety herein.

65. As indicated above, Axl is and at all times during the course of relevant events hereunder was a partner in the Guns N’ Roses Partnership - whether identified as “Guns N’ Roses,” “Guns N’ Roses Music,” or by any other name - and whether (a) a new “partnership” which included Axl, Slash and Duff was formed; (b) a new “partnership” consisting solely of Axl and Duff was formed; or, (c) Axl was deemed re-admitted to the “partnership.”

66. Based on the actions of Slash and Duff that were inconsistent with their fiduciary and other obligations as partners, Axl is entitled to a dissolution and winding up of the partnership business pursuant to California Corporations Code § 16801.

67. Axl hereby realleges and incorporates by reference paragraphs 1 through 66 above as though such allegations were set forth in their entirety herein.

68. Slash and Duff knew at all times herein mentioned that their claim that they were the sole remaining members of the “partnership” was a completely frivolous claim, contrived solely to hijack valuable property rights without any proper legal basis, yet they have asserted that claim contrary to substantial evidence in an effort to interfere with Axl's rights to enter into new agreements for the exploitation of his interest in and to the musical compositions in which he is a co-owner of the copyrights, and to interfere with Axl’s rights to the trademark rights. Slash’s and Duff’s actions were independently wrongful based on their breach of contract and fiduciary duties as alleged herein.

69. Slash’s and Duff’s conduct was calculated to interfere, and did interfere, with Axl’s economic advantages, including his ability to receive royalties and enter into agreements.

70. As the direct and legal result of the aforementioned interference by Slash and Duff, Axl has sustained damages in an amount to be determined at the time of trial of at least $5,000,000.

71. Slash’s and Duff’s conduct described herein was fraudulent, knowing, willful, and with malicious intent and, as a result, Axl is entitled to punitive damages in an amount to be determined by proof at trial.

72. Axl hereby realleges and incorporates by reference paragraphs 1 through 71 above as though such allegations were set forth in their entirety herein.

73. Slash’s and Duff’s actions described above were unfair, unlawful, fraudulent and likely to deceive the public and constitute unfair competition in violation of California Business & Professions Code Section 17200, et seq.

74. Axl and the public have been and will continue to be damaged and irreparably harmed by Slash’s and Duff’s acts of unfair competition. Axl has no adequate remedy at law. Accordingly, Axl is entitled to an order enjoining Slash and Duff from further unfair and illegal actions.

75. Axl hereby realleges and incorporates by reference paragraphs 1 through 74 above as though such allegations were set forth in their entirety herein.

76. Slash and Duff have claimed that they have the exclusive rights to authorize licenses for the use of GNR musical compositions.

77. Axl has maintained that any license request is subject to the unanimous consent of Axl, Slash and Duff.

78. An actual controversy exists regarding approval for licensing requests.

79. A judicial declaration is necessary and appropriate so that the parties may ascertain and know their rights with respect to the granting of licenses.

WHEREFORE, Axl prays for the following relief:

1. A declaration affirming that he owns and has the right to administer his share of copyrights in the Compositions, a declaration as to the ownership of trademark rights and declaration as to the authorization to grant licenses.
2. For compensatory damages in an amount to be proven at the time of trial.
3. For punitive damages in connection with the 4th, 6th and 7th counterclaims for relief.
4. For costs of suit herein, including reasonable attorney’s fees.
5. For such other and further relief as the Court deems just and proper.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION.

Once the ad hominem attacks, rhetoric and gratuitous argument are removed, the bulk of Axl Rose’s (“Axl”) First Amended Counterclaim is devoid of legal foundation and fails to state a claim upon which relief can be granted. The first counterclaim - which seeks ajudicial declaration that Axl and Black Frog are coowners of the copyrights in the Guns N’ Roses (“GNR”) songs - is barred by the applicable three-year statute of limitations. These GNR songs were (in the mid-1980s to 1990s) and remain registered in the copyright office in the name of the GNR Partnership (the “Partnership”), and not to separate individual co-owners. Axl now claims those registrations were “erroneous,” but he failed timely to challenge them.

In an effort establish ownership by the separate individuals (as opposed to the Partnership), Axl relies on an exhibit (“Exhibit F”) attached to a 1994 settlement agreement between the band and a leaving member, Izzy Stradlin. Under Exhibit F, Axl, Slash and Duff were all contractually required to transfer the copyrights out of the Partnership and into each band member’s separate, wholly-owned publishing company. Because Axl admits those assignments never took place, his claim to secure co-ownership arose at the latest when Exhibit F was signed, well over a decade ago, and lapsed three years later.

The first counterclaim should also be dismissed because both he and Black Frog lack standing to bring it. Exhibit F expressly provides that the Guns N’ Roses Music partnership must assign a portion of its copyrights not to Axl personally, but to a separate publishing company formed by Axl. Thus, even under Axl’s own theory, he personally has no claim of co-ownership. In his amended counterclaim, Axl attempts to cure this defect by inserting Black Frog as a claimant. However, Black Frog was not formed until June 1998, four years after Axl alleges that Exhibit F became effective. Thus, it is impossible for Black Frog to have been the publishing company formed for purposes of accepting the copyrights pursuant to Exhibit F.

The second counterclaim for breach of contract (Exhibit F) is time-barred for the same reason, i.e., the assignments of copyright out of the Partnership supposedly required by Exhibit F never occurred. Axl had, at most, four years from the time he asserts the assignments should have been made to vindicate this supposed breach. Having failed to do for more than a decade, the limitations period on this claim has long since run.

The fourth counterclaim for breach of fiduciary duty is premised on Axl’s specious claim that he is still a partner, even though he claims an exclusive right to use the Guns N’ Roses name based on his withdrawal from the Partnership. Even if he was still a partner in the original Partnership, which he is not, Slash and Duff would owe him fiduciary duties related only to Partnership assets and business. Axl’s fiduciary duty claim is based upon allegations that Slash and Duff insulted his artistic integrity which affected his ability to conduct business in his new band, which is wholly unrelated to the original Guns N’ Roses band and Partnership. Even assuming that Slash and Duff actually made the statements Axl attributes to them, they cannot support a claim for breach of fiduciary duty because Slash and Duff owe Axl no duty, fiduciary or otherwise, with respect to his work as a recording artist in his career after withdrawing from the original Guns N’ Roses.

The sixth counterclaim for interference with prospective economic advantage should be dismissed because Axl failed to identify any particular business relationships that were injured. Generally alleging interference with the market, as Axl has done, is insufficient. Axl also failed to allege independently wrongful conduct apart from the alleged breach of contract and fiduciary duty claims which, as shown above, should be dismissed.

Plaintiffs also move for a more definite statement of Axl’s dizzying partnership theory. Without explanation of any kind, Axl alleges that he is a partner with just Duff in a new partnership, or maybe Slash and Duff in a new partnership, or possibly Slash and Duff in the original GNR Partnership. These theories are materially irreconcilable. For example, under one of Axl’s possible partnership scenarios (the one where just he and Duff are partners), Slash is not a partner. Under that version, Slash manifestly cannot be liable for breach of any partnership or fiduciary duty, nor can he be a party to any claim for dissolution of such a partnership. Axl, however, has named Slash in both of those claims. Because Slash is entitled to know what he is being accused or, or even if he is being accused at all, clarification is necessary. In the two other alternatives proposed by Axl, he formed a new partnership with both Slash and Duff (the terms of which are unknown), or rejoined the original GNR Partnership but apparently gets to keep the group name he obtained only because he withdrew from that partnership.

Without knowing which partnership is at issue and what those partnerships did, Plaintiffs are left to guess at the whether Axl genuinely claims they ever entered into such a partnership, the extent of their fiduciary duties and what basis there may be for dissolution. Axl must be put to the task of providing enough information so that Slash and Duff can understand what it is they are being accused of, and as such, a more definite statement is in order.

II. AXL’S ALLEGED FACTS.¹

A. Axl’s Alternative Partnership Theory.

According to Axl, Slash and Duff are not the sole remaining members of the Partnership, but merely claim to be in order to somehow “hijack” Axl’s copyright and trademark rights. (Counterclaim ¶¶ 2,14.) Although Axl concedes withdrawing from the GNR Partnership as of December 1995, sometime later, “one of several scenarios occurred: (a) a new ‘partnership’ which included Axl, Slash and Duff was formed; (b) a new ‘partnership’ consisting solely of Axl and Duff was formed; or, (c) Axl was deemed re-admitted to the [presumably original GNR] ‘partnership.” (Id. ¶¶ 4-5, 53.) The sole allegation explaining these alternative partnership scenarios is that Slash and Duff did not act as though Axl was no longer a partner. Axl fails to explain how he acted, however, i.e., that he withdrew from the Partnership. He also fails to reconcile his claim of supposed readmission with his ongoing claim to exclusive use of the Group Name, which he obtained only upon leaving.

B. Claims Arising From Axl’s Alternative Partnership Theory.

By virtue of Axl’s varying partnership theories, Slash and Duff owed fiduciary duties which they breached by, in essence, assailing his artistic integrity. (Counterclaim ¶ 60.) Specifically, Axl alleges that Slash and Duff falsely claimed that Axl was responsible for the breakup for the band; lied about the formation of the band; lied about Axl’s commitment to the band; falsely accused him of cancelling shows; attempted to discourage musicians from working with him; disparaged his work ethic; disparaged his commitment to the band’s fans; disparaged his contributions as a songwriter and performer; and disparaged his vision for the band’s future. (Id.) Axl alleges that these statements were calculated to harm Axl “in his business.” (Id. ¶ 61.) For these breaches, Axl was allegedly damaged in an amount of at least $5,000,000 (Id. ¶ 62) and now seeks to dissolve whichever of the three newly alleged partnerships might exist. (Id. ¶ 66.)

Axl also alleges that Slash’s and Duff’s claim of being the sole remaining members of the Partnership has interfered with his prospective economic advantage; specifically his ability to receive royalties and enter into agreements. (Counterclaim ¶¶ 68-69.) There are no allegations identifying (a) any persons with whom this ability to contract was impaired, (b) any royalties he did not receive or (c) any other legitimate business expectancy that was lost or damaged.

C. “Exhibit F.”

Axl alleges that he, as opposed to the GNR partnership, owns and controls his share of the copyrights in the GNR Songs as a joint copyright owner. He relies on Exhibit F, which he specifically alleges the parties entered into in or about April 1994. (Id. ¶¶ 31-33.) Axl makes various allegations about, and directly quotes from, Exhibit F, but he does not attach it. (Id. ¶¶ 33-37.)

A copy of Exhibit F is attached as Exhibit 1.² The parties to Exhibit F are not individuals, but instead the “publishing company designees” for each of Axl, Slash and Duff. These separate publishing companies are collectively referred to as “Publishing Companies.” (Exhibit F, Recitals, p. 1.) In calling for the transfer of the copyrights out of the Partnership and back to the individuals via their separate companies, Exhibit F expressly acknowledges that “the Compositions have been registered for copyright in the names of Guns N’ Roses Music in the Copyright Office of the United States of America, which copyright registrations shall be assigned to the Publishing Companies....” (Exhibit F, Recitals, p. 2.)

Exhibit F also provides:
Inasmuch as the Compositions have heretofore been registered for copyright, the parties hereto shall simultaneously herewith cause to be delivered such assignments of the appropriate interest in the copyright thereof as may be necessary to conform record title in the copyright (i.e., title as shown in the records of the Copyright Office of the United States of America) with the percentages referred to hereinabove.
(Exhibit F, ¶2 (emphasis added).)

Exhibit F states that:
The parties hereto shall each have the right to administer their respective right in and to the Compositions throughout the world during the full term of worldwide copyright, including renewals, but only in accordance with all the terms and conditions of this agreement.
(Exhibit F ¶3 (emphasis added).)

Finally, Exhibit F requires the parties to “execute any further documents including, without limitation, assignments of copyrights...” (Exhibit F ¶ 14.) There is no allegation, nor can there be, that the copyrights were ever assigned from Guns N’ Roses Music. (See Request for Judicial Notice (“RJN”), Exhs. A-N.) Axl does not allege that he ever formed the publishing company contemplated by Exhibit F. Counter-claimant Black Frog Entities, Inc. was not that publishing company, as it was not even formed until 1998. (RJN, Exh. O.)

D. Axl’s Claims Based On “Exhibit F.”

Now, 14 years later, Axl seeks to wrest GNR’s right to administer the copyrights from the Partnership, and instead to the individuals as joint owners and seeks a declaratory judgment to that effect. (Counterclaim ¶41.) Assuming Exhibit F ever came into effect, it obliged Slash and Duff in 1994 immediately to assign the copyrights from Guns N’ Roses Music to the individual Publishing Companies, which they did not do. Thus, according to Axl, Slash and Duff have breached Exhibit F by claiming that he does not have the right to administer copyrights in the GNR Songs. (Id. ¶ 38.) Although the very contract upon which he bases his right to co-administer the copyrights expressly states that he does not own them and will not own them unless they are transferred out of the Partnership, Axl claims that Slash and Duff did not “expressly repudiate” his right to co-ownership until this action was filed. (Id. ¶ 40.)

Axl also alleges that in June 1999, Axl, Slash and Duff agreed that any requests to license GNR Songs would require unanimous approval, and that that alleged oral agreement superseded the written Partnership Agreement. (Counterclaim ¶ 18.) The parties acted in conformance with that oral agreement. (Id. ¶19.) Now, according to Axl, Slash and Duff want to grant licenses with “reckless abandon.” (Id. ¶ 20.)

III. THE FIRST COUNTERCLAIM FOR DECLARATORY JUDGMENT OF AXL’S ALLEGED COPYRIGHT RIGHTS SHOULD BE DISMISSED.

A. Axl’s Claim Of Co-Ownership Is Time-Barred.

Axl’s claim that he is a co-owner of the copyrights in the GNR Songs is subject to the three-year limitations period for co-ownership claims. 17 U.S.C. § 507(b) (“no civil action shall be maintained under the provisions” of the copyright act unless it is within three years after the claim accrued); Zuill v. Shanahan, 80 F.3d 1366, 1369-70 (9th Cir. 1996) (claim for a judicial declaration of co-ownership of a copyright is subject to the three year statute of limitations). Ordinarily, such a cause of action accrues when a “plain and express repudiation of co-ownership is communicated to the claimant.” Id.

In Zuill, the court found the requisite express repudiation where a contract between the parties “claimed sole ownership of the copyright” and where printed notices of copyright were provided to the putative co-owners. Zuill at 1368. Here, the Partnership’s repudiation of Axl’s individual rights was even more plain and express because the copyrights have been held in the name of the Partnership since the 1980s. There can be no more obvious repudiation of an individual’s copyright ownership that a copyright registration in someone else’s name.³

Even if the copyright registrations themselves did not make it clear enough, Exhibit F expressly recognized that the subject copyrights were held in the name of Guns N’ Roses Music and needed to be assigned before they could be co-owned and co-administered. Axl signed Exhibit F and thereafter was on express notice that neither the Partnership owned the copyrights, and that neither he nor his publishing company owned the copyrights and would not own them until assignments were executed. Indeed, that is the entire gravamen of Axl’s claim -that the Partnership did not transfer the copyrights out of the Partnership. Thus, Exhibit F is just like the compensation agreement in Zuill. Id. at 1368 (finding express repudiation where “[t]he compensation agreement tendered in January of 1987 claimed sole ownership of the copyright”).

Because Axl was on notice that the Partnership, not Axl individually, owned the copyrights as early as the date the copyrights were registered, or at least as early as the date he signed Exhibit F⁴, any co-ownership claims accrued nearly 15 years ago.⁵ By failing to bring such a claim until 2008, Axl’s claim is time-barred.

Axl also claims that he never initially assigned his copyright interest in the GNR Songs to the Partnership, apparently trying an alternative co-ownership theory. But the GNR Songs have been registered in the name of Guns N’ Roses Music since as early as 1987. (RJN, Exhs. A-N.) Further, Exhibit F expressly recites their registration status and requires a written assignment to effect a change in ownership. To the extent Axl wanted to challenge those supposedly erroneous registrations by a civil action, again, he had three years to do so. At the very latest, he had three years from executing Exhibit F.

Axl has sat on his rights for more than a dozen years before ever raising his co-ownership claim. The entire time, he knew that the copyrights were registered in the Partnership’s name and never assigned. The requirement of an express repudiation of his purported co-ownership is satisfied. Accordingly, his copyright claim based on Exhibit F is time-barred and should be dismissed.

B. Axl And Black Frog Lack Standing Under Exhibit F.

Copyright claims are properly dismissed under Rule 12 for lack of standing. McCormick v. Amir Const. Inc., 2008 WL 2093715 *1-2 (9th Cir. 2008) (dismissing claim where contract provided that defendant retained ownership). The parties to Exhibit F are not the individual band members, but rather publishing companies that the members were supposed to form. (Exhibit F, pgs. 1,7.) Exhibit F required assignments to the publishing companies, not to Duff, Slash or Axl themselves. If Axl had ever created a publishing company in the mid-1990’s (which he would have done had he genuinely believed Exhibit F came into effect), that entity, not Axl, must be the plaintiff on this claim.⁶ Accordingly, Axl’s publishing company - to the extent it ever existed - has standing to bring this claim, if anyone, not Axl himself.

In order to circumvent this pleading defect, Axl’s amended pleading suggests (but does not come out and state) that Black Frog is the entity formed to receive the copyright assignments under Exhibit F. This, however, is a fallacy as public records establish that Black Frog was not even formed as an entity until 1998, some four years after Axl claims that Exhibit F became effective. (RJN, Exh. O.) Black Frog was not formed at or near the time of Exhibit F. Like Axl, it lacks standing to enforce Exhibit F.

IV. AXL’S SECOND COUNTERCLAIM FOR BREACH OF CONTRACT SHOULD BE DISMISSED.

Axl’s second counterclaim is also time-barred. He alleges that Plaintiffs breached the contract (Exhibit F) by failing to assign the copyrights in the GNR Songs to the parties’ respective publishing companies. As noted above (and indeed as Axl expressly alleges), Exhibit F required the simultaneous delivery of copyrights assignments, and a cause of action for failure to do so accrued immediately, if ever. The assignments never took place. The limitations period for breach of written contract is four years. Cal. Civ. Proc. Code § 337. Axl’s right to bring a claim for breach of Exhibit F ran almost a decade ago.

V. THE FOURTH COUNTERCLAIM FOR BREACH OF FIDUCIARY DUTY SHOULD BE DISMISSED.

Axl premises his fourth counterclaim on his allegation that he somehow is still a partner and therefore is owed fiduciary duties. Axl pleads that Slash and Duff breached those duties by disparaging about his qualities as a band member. Of course, Axl no longer performs with Slash and Duff, and has not for more than a decade. The Partnership’s business is not songwriting, band membership or performance, but rather merchandising and catalog administration. Thus, none of this supposed maligning of Axl has anything to do with the ability of the original GNR Partnership to conduct its business or make money. Instead, if the statements attributable to Slash and Duff have any significance at all, they impact Axl’s ability to conduct his new business with his new band. Slash and Duff, however, do not owe Axl fiduciary duties relating to his new band. Statements that prejudice Axl’s ability to perform in New Guns N’ Roses cannot be a breach of fiduciary duty.

Because it does not state a claim, the fourth counterclaim should be dismissed.

VI. THE SIXTH COUNTERCLAIM FOR INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE SHOULD BE DISMISSED.

A. Axl Fails To Plead Any Actual Interference.

To allege a cause of action for tortious interference with prospective economic advantage a party must demonstrate the existence of a specific economic relationship between itself and an identifiable third party “containing the probability of future economic benefit.” Blank v. Kirwan, 39 Cal. 3d311 (1985) (affirming the sustaining of demurrer); Rickards v. Canine Eye Registration Foundation, Inc., 704 F.2d 1449 (9th Cir. 1983) (applying California law). A party cannot maintain a claim where its alleged “existing relationship [is] with... speculative future [customers].” Roth v. Rhodes, 25 Cal. App. 4th 530, 546 (1995); see also Asia Investment Co. v. Borowski, 133 Cal. App. 3d 832 (1982) (no valid claim where real estate developer’s only “business relationship” was with a class of-as-yet unknown purchasers); Westside Center Associates v. Safeway Stores 23 Inc., 42 Cal. App. 4th 507 (1996) (plaintiff could not maintain claim where he could not show an existing relationship with a readily identifiable buyer).

Westside Center is particularly instructive. There, plaintiff strip mall owner sued defendant anchor tenant for intentionally interfering with plaintiff’s ability to sell the property to potential buyers. The plaintiff could not demonstrate, however, the existence of an actual relationship between itself and some specifically identifiable third party that would have resulted in future economic advantage but for the defendant’s actions. Accordingly, the court rejected the plaintiff’s “interference with the market” theory because there was no indication of a “existing relationship with an identifiable buyer.” Id. at 527. The plaintiff’s allegations were “at most a hope for an economic advantage and a desire for future benefit.” Id. at 524 (citation omitted).

Axl alleges only that Slash and Duff’s supposedly “frivolous” claim to be the sole remaining partners in the Partnership “was calculated to interfere, and did interfere, with Axl’s economic advantages, including his ability to receive royalties and enter into agreements.” Axl has not identified a single royalty he did not receive or a single contract into which he could not enter. His conclusory allegations are nothing more than a “speculative expectation that a potentially beneficial relationship will eventually arise.” Westside Center, 42 Cal. App. 4th at 524. The failure to identify any actual interference warrants dismissal.

B. Axl Failed To Plead Independent Wrongfulness.

Axl must allege independently tortious activity that interfered with contractual relations. Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 392 (1995). He has failed to do so. The alleged independent conduct forms the basis for the breach of contract and fiduciary duty claims which, as shown above, are not actionable. For this reason, as well, the sixth counterclaim should be dismissed.

VII. THE COURT SHOULD ORDER A MORE DEFINITE STATEMENT OF AXL’S CONFUSING PARTNERSHIP THEORIES.

Axl’s claim that he is a partner in one of three partnerships, possibly including the one from which he withdrew, justifies a more definite statement. In his Counterclaim, Axl alternatively claims to be (1) partners with Slash and Duff in a new partnership; (2) partners with just Duff in a new partnership; or (3) readmitted into the original Partnership. As soon as Axl has alleged these partnerships, he sues, among other things, to dissolve it/them.

While Rule 8 permits alternative pleading, the purpose of the Rule is “to give fair notice to the opposing party so that they may properly respond to and/or defend the claim.” Pierce v. Montgomery County Opportunity Bd., Inc., 884 F. Supp. 965 (E.D. Pa. 1995) (dismissing claim for breach of contract by alleged third-party beneficiary where no facts alleged to support beneficiary status). Here, Axl’s actual position is impossible for Plaintiffs to divine.

For example, Axl takes issue with Plaintiffs’ assertion that they are the sole remaining partners in the Partnership, brazenly calling it a “complete fallacy and fraud,” a “scheme,” and an “outright fraud on the Court.” However, only one of his three alternative scenarios has Axl going back to that original Partnership, with the other two being that Axl left that partnership to form new ones. Under either of the latter scenarios, Axl recognizes, at least implicitly, that Slash and Duff are in fact the only remaining members of the Partnership. Axl’s rank argumentative hyperbole has no place in a pleading, and he should be put to the task of properly alleging exactly what he is accusing Slash and Duff of doing.

Moreover, Axl’s pleading materially deprives Slash of the ability to respond to the Counterclaims relating to this new partnership. Axl has named both Slash and Duff on the dissolution and breach of fiduciary duty claims. Under the partnership scenario where only Axl and Duff are partners without Slash, however, Slash cannot have breached fiduciary duties or be named in a dissolution claim relating to that partnership. Without explanation, Axl has named him in both of these claims anyway. Fundamentally, Slash is entitled to know what he is being sued for.

Similarly, it is impossible for Slash and Duff to know what any of these new partnerships have done, what business they have conducted, what assets they possess, or any other critical matters necessary to develop a meaning response consistent with Rule 11.

In sum, the Amended Counterclaim contains more argument than it does a plain statement of facts, and therefore violates Rule 8. Plaintiffs are entitled to know what Axl is accusing them of and what they are admitting or denying in their answer. The partnership-related allegations in the Counterclaim, and the counterclaims on which they depend, should be supported by a more definite statement.

IV. CONCLUSION.

For the foregoing reasons, Plaintiffs respectfully request that the first, second, fourth and sixth counterclaims be dismissed. Plaintiffs further request that Axl be ordered to replead all allegations based on his claim that he is a partner in one of many partnerships, as well as the fourth counterclaim for breach of fiduciary duty (if not dismissed) and the fifth counterclaim for dissolution, each of which depends on that theory.

EXHIBIT "F"

CO-ADMINISTRATION AGREEMENT

THIS AGREEMENT made as of the ________  day of ____________, 19___, by and among the publishing company designees of W. Axl Rose ("Rose” and "Rose Company"), Saul Hudson, p/k/a "Slash" ("Slash" and "Slash Company"), Michael "Duff" McKagan ("McKagan" and "McKagan Company") and Jeffrey Isbell, p/k/a "Izzy Stradlin" ("Stradlin" and "Stradlin Company") (hereinafter Rose Company, Slash Company, McKagan Company and Stradlin Company shall sometimes be referred to collectively as the "Publishing Companies").

WITNESSETH:

WHEREAS, Rose, Slash, McKagan and Stradlin (hereinafter sometimes individually and collectively referred to as "Composers") are co-writers of the musical compositions set forth on Exhibit "A-1" attached hereto and incorporated herein by this reference (hereinafter referred to as the "Compositions");

WHEREAS, Rose Company has heretofore entered into an agreement with Company pursuant to which Company has exclusive administration over Rose's right, title and interest in and to the Compositions;

WHEREAS, Slash Company has heretofore entered into an agreement with Company pursuant to which Company has exclusive administration over Slash's right, title and interest in and to the Compositions;

WHEREAS, McKagan Company has heretofore entered into an agreement with Company pursuant to which Company has exclusive administration over McKagan's right, title and interest in and to the Compositions;

WHEREAS, Stradlin Company has heretofore entered into an agreement with Company pursuant to which Company has exclusive administration over Stradlin's right, title and interest in and to the Compositions;

WHEREAS, it is the intention of the parties hereto that the entire worldwide right, title and interest, including the copyright, the right to the copyright and the renewal right, in and to the Compositions shall be owned in the percentages set forth on Exhibit "A-1" attached hereto.

WHEREAS, the division of songwriter royalties with respect to the Compositions shall be as set forth on Exhibit "A-1” attached hereto.

WHEREAS, the Compositions have been registered for copyright in the names of Guns N' Roses Music in the Copyright Office of the United States of America, which copyright registrations shall be assigned to the Publishing Companies, respectively, in the shares set forth in Exhibit "A-1” hereto;

WHEREAS, the parties hereto desire that each of them shall administer its respective interest in the Compositions upon all the terms and conditions contained herein;

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged by each party hereto, it is agreed as follows:

1. The Publishing Companies shall jointly own the Compositions, in the shares above described, including all of the worldwide right, title and interest, including the copyright, the right to copyright and the renewal right, therein and thereto.

2. Inasmuch as the Compositions have heretofore been registered for copyright, the parties hereto shall simultaneously herewith cause to be delivered such assignments of the appropriate interest in the copyright thereof as may be necessary to conform record title in the copyright (i.e., title as shown in the records of the Copyright Office of the United States of America) with the percentages referred to hereinabove.

3. The parties hereto shall each have the right to administer their respective right in and to the Compositions throughout the world during the full term of worldwide copyright, including renewals, but only in accordance with all the terms and conditions of this agreement. The parties hereto shall each have the right, throughout the world, to enter into any and all nonexclusive licenses and agreements with respect to the exploitation of-mechanical reproduction rights and performing rights (subject to Paragraphs 4 and 5 hereof) as to their respective interests in the Compositions. As to all other uses of the Compositions, including without limitation, synchronization, printing, publication or other uses or any exclusive licenses of the Compositions of any nature whatsoever in connection with the exploitation of the Compositions, such licenses shall only be with the prior written approval of all of the parties hereto, which approval shall not be unreasonably withheld by any such party. The licensing party must notify its licensee that it must seek a license from the other parties hereto with respect to such other parties' interests in the Compositions. No party hereto shall grant any license with respect to a so-called ”first use” of any of the Compositions, as such term is commonly understood in the music publishing industry, without the prior written consent of the other party, not to be unreasonably withheld. Notwithstanding anything to the contrary contained herein, no party to this agreement shall have the right to use the name or likeness of, or biographical information concerning the other parties' writers without the consent of the other parties, except that each of the parties hereto shall grant said writers customary credit in all places where writer credit is customarily granted.

4. Small performing rights in the Compositions, to the extent permitted by law, shall be assigned to and licensed by the performing rights society or societies to which each party belongs. Said society or societies shall be and is or are hereby authorized to collect and receive all monies earned from the public performance of the Compositions in the United States and Canada and shall be and is or are hereby directed (subject to its or their rules and regulations) to pay directly to each of the parties hereto, in their respective shares, the amount allocated by said society or societies as the publisher's share of public performance fees for the Compositions for the United States and Canada.

5. In respect of mechanical reproduction rights in and to the Compositions for the United States and Canada, each of the parties hereto, or their respective duly authorized agents, shall have the right to issue non-exclusive mechanical licenses with respect to their respective interest in the Compositions only. Each party shall notify its licensee that it must seek a license from the other parties with respect to such other parties' interest in the Compositions.

6. The parties hereto shall each have the separate right outside of the United States and Canada to administer and exploit the Compositions, to print, publish, use and license the use of the Compositions, and to execute any and all licenses and agreements whatsoever affecting or respecting the Compositions, including without limitation, subpublishing or collection agreements; provided, however, that (i) each such subpublishing or collection agreement (the licensee under any such subpublishing or collection agreement is hereinafter referred to as the "Subpublisher") may only cover the licensing party's respective share of the Compositions, either alone or with other musical compositions, for any one or more countries of the world outside of the United States and Canada, (ii) no licenses or agreements entered into by the Subpublisher may be exclusive (unless executed by each of the parties hereto or their respective Subpublisher[s]), and (iii) each Subpublisher shall account and pay directly to its respective licensor all proceeds attributable to such licensor's share of the compositions. Notwithstanding anything to the contrary contained herein, and to facilitate the payment of foreign income, the parties hereto agree that any subpublishing agreement entered into by them shall provide for payment based upon the country of sale.

7. From the sums received by each of the parties hereto in accordance with Paragraphs 3, 5 and 6 hereof, each party shall be responsible for and shall pay all royalties payable to the applicable writer and/or co-publisher under contract to it.

8.     (a) Although the parties hereto have agreed to and provided herein for payment from any other person, licensee, assignee or grantee (hereinafter referred to as the “Payor") directly to each of the parties hereto, in the event any party hereto (for convenience herein referred to as the "Receiving Party") shall receive from a Payor monies which include the other parties' appropriate share of monies, the Receiving Party shall hold the other parties' appropriate share of monies in trust for the benefit of the other parties and shall pay over to the other parties' said appropriate share of monies within thirty (30) days after the Receiving Party's receipt thereof. In addition, the Receiving Party shall issue, at the same time, to the other party, a copy of all of the relevant portions of the accounting statements regarding the Compositions received by the Receiving Party from the Payor.
     (b) Each party hereto shall each have the right to audit the books and records of all other parties hereto with respect to any monies received under Paragraph 8(a) hereof once during each year, provided that (i) the party desiring to conduct such audit shall give the other party thirty (30) days' prior notice of its desire to conduct such audit; (ii) said audit is conducted by a certified public accountant, and (iii) said audit is conducted at the expense of the party conducting same.

9. Each party hereto shall give the others the equal benefits of any warranties or representations which it obtained or shall obtain under any agreements affecting the Compositions, including the songwriters' agreements with Composers. Each of the parties hereto hereby warrants and represents to the others that each has the right to enter into this agreement and to make any of the grants contained herein, and that the exercise by any of the parties hereto of any and all rights with respect to the Compositions will not violate or infringe upon any common law or statutory rights of any person, firm or corporation, including, without limitation, contractual rights, copyrights and rights of privacy. The rights granted herein are free and clear of any claims, demands, liens or encumbrances.

10. The parties hereto shall each have the right to prosecute, defend, settle and compromise all suits and actions respecting the Compositions, and generally to do and perform all things necessary concerning the same and the copyrights therein to prevent and restrain the infringement of copyright or all other rights, but solely with respect to each party's respective interest in the Compositions. Notwithstanding the foregoing, however, in the event the foregoing actions or proceedings shall involve the rights of both parties, the party instituting any such action or proceeding shall give the other an opportunity to join in such action or proceeding. If any other party shall decline to join in such action or proceeding involving its interest in the Compositions, the party bringing such action shall only have the right to proceed with respect to its own interest and shall have the right to settle or compromise any such action or proceeding only as to its respective ownership interest in the Compositions. If all parties shall join in any action or proceeding against a third party involving all parties' interests, or if any non-joining party shall consent to its  interests being represented by the party proceeding with any action with respect to the Compositions, any recovery of any monies as a result of a judgment, settlement or otherwise shall be divided equally by the parties, after first deducting the expenses of obtaining said monies, including reasonable attorneys' fees and expenses.

11. Each party hereto hereby indemnifies, saves and holds the other parties, their assigns, licensees and their directors, officers, shareholders, agents and employees harmless from any and all liability, claims, demands, loss and damage (including counsel fees and court costs) arising out of or connected with or resulting from any breach of any of the warranties, representations or agreements made by the indemnitor in this agreement or by Composers in accordance with Paragraph 9 hereof. All of the parties hereto, as the case may be, shall give the others prompt written notice of any claim or action covered by said indemnity.

12. The respective addresses of the parties hereto for all purposes of this agreement shall be as set forth below, until written notice of a new address shall be duly given:
                                     COMPANY                                                  PUBLISHER
                                   _____________                                 _____________
                                   _____________                                 _____________
                                   _____________                                 _____________
                                   _____________                                 _____________
All notices shall be in writing and shall either be delivered by hand (to an officer if the party to be served is a corporation) or by registered or certified mail (return receipt requested), postage prepaid, or by telegraph, all charges prepaid. The date of making personal service or of mailing or of deposit in a telegraph office, whichever shall be first, shall be deemed the date of service.

13. This agreement shall not be deemed to give any right or remedy to any third party whatsoever unless said right or remedy is specifically granted to such third party by the terms hereof.

14. The parties hereto shall execute any further documents including, without limitation, assignments of copyrights, and do all acts necessary to fully effectuate the terms and provisions of this agreement.

15. This agreement sets forth the entire understanding among the parties, and cannot be changed, modified or cancelled except by an instrument signed by the party sought to be bound. This agreement shall be governed by and construed under the laws of the State of California applicable to agreements wholly performed therein.

16. This agreement shall not be binding upon the parties hereto until duly executed by all parties. Nothing herein contained shall constitute a partnership between or a joint venture by the parties hereto. No party hereto shall hold itself out contrary to the terms of this paragraph, and no party shall become liable for any obligation, act or omission of the other parties contrary to the provisions hereof. If any provision of this agreement shall be declared invalid, same shall not affect the validity of the remaining provisions hereof. No waiver of any provision of this agreement or of any default hereunder shall affect the waiving party's rights thereafter to enforce such provision or to exercise any right or remedy in the event of any other default, whether or not similar.

IN WITNESS WHEREOF, the parties have executed this agreement the day and year above set forth.

ROSE COMPANY
By (Signed Axl Rose)

SLASH COMPANY
By (Signed Slash)

MCKAGAN COMPANY
By (Signed Duff McKagan)

STRADLIN COMPANY
By (Signed Izzy Stradlin)

(DATE) 5/11/94

Black Frog Entities, Inc.
c/o Sanctuary Artist Management Inc.
75 North Avenue
New York, NY 10011

Dated As Of March 8, 2006

Bravado International Group Merchandising Services Inc,
330 Seventh Avenue
New York, New York 10001

Gentlemen:

Reference is made to the merchandise agreement between my company, Black Frog Entities, Inc. and Bravado International Group Limited (“Bravado”) dated September 25, 2002 in respect of the Guns N’ Roses artwork and designs (the “Agreement”). I confirm that as of the beginning of January 2004 and continuing for the length of the Term of the Agreement, in my capacity as a co-creator and co-copyright owner of the “historic GNR artwork” (which artwork was not subject in the Agreement), I granted a separate non-exclusive worldwide license to you and your affiliates (including, without limitation, Bravado) to manufacture, distribute, sell and exploit products throughout the world embodying the “historic GNR artwork” (“Historic Merchandise”) on the same royalty, accounting and audit terms as are contained in the Agreement. You and I agreed that the respective share of royalties that should be payable to the former members of GNR (e.g. “Slash” and “Duff”) on such sales of the Historic Merchandise should be computed, calculated and paid to them at such time as it was clarified and agreed between me and such members as to the amount of royalties that they are entitled to, taking into account the fact that I am the sole owner of the name “Guns N’ Roses”. It is acknowledged by me that each former member must receive their share of royalties free of any recoupment of any advances paid to me under the Agreement.

AGREED

By: W. Axl Rose (Signed)

By: Bravado International Group Merchandising Services Inc. (Signed)

BLACK FROG MUSIC, INC.
5900 Canoga Ave., Suite 410
Woodland Hills, CA 91367

September 14, 2007

Bravado International Group Merchandising Services Inc.
330 Seventh Avenue
New York, NY 10001
Attn: Tom Bennett

Dear Mr. Bennett,

This letter refers to the one paragraph agreement dated as of March 8, 2006 which I executed on the advice and at the direction of the then CEO of Sanctuary Music Group as well as being my then manager, Merck Mercuriadis (but without the advice of independent counsel). A representative of Bravado countersigned that document.

The March 8 agreement states that monies collected on the sale of so called Historic Merchandise shall be “computed, calculated and paid… at such time as it was clarified and agreed between me and [the former members of GNR] as to the amount of royalties that they are entitled to, taking into account the fact that I am the sole owner of the name ‘Guns N’ Roses.’” To alleviate any concerns you may have counsel for the former members has confirmed their consent to the release of funds to Mr. Sussman (see attached) per the requirement that it be “clarified and agreed between me and [the former members of GNR] regarding the payment of royalties for “Historic Merchandise”.

Please be advised that the former members and I have agreed that all monies from my royalty account relating to the sale of Historic Merchandise should be immediately accounted for and remitted to Guns N’ Roses Music. Please remit the sum of $740,164.11 per Bravado’s August 22, 2007 statement to Guns N’ Roses Music, c/o Gudvi Sussman & Oppenheim, 1222 16th Ave So., 3rd Floor, Nashville, TN.

This letter is sent without waiver of any of my rights or remedies with respect to my Merchandising Agreement with Bravado and the March 8 Agreement, all of which are expressly reserved.

Sincerely,
(Signed)
W. Axl Rose
On behalf of himself and Black Frog Music Inc.