2005.08.17 - Slash & Duff Vs. Axl lawsuit document (& Axl's counter-claims documents)

Suffering an apparent attack of arrogance and ego, former Guns N’ Roses singer Axl Rose recently decided that he is no longer willing to acknowledge the contributions of his former partners and bandmates in having created some of rock’s greatest hits, such as “Welcome to the Jungle,” “Paradise City” and “Sweet Child O’ Mine.” So, Mr. Rose duped the American Society of Composers, Authors and Publishers (“ASCAP”) into changing the designation of the Publisher/Administrator of the Guns N’ Roses copyrights from the true copyright owner to himself and his publisher. This change in designation deception also resulted in ASCAP paying public performance publishing royalties to Rose himself and his accomplices. Defendants’ conduct constitutes, among other things, copyright infringement, breach of fiduciary duty, fraud, unfair competition, interference with prospective economic advantage, breach of implied covenant of good faith and fair dealing, and conversion. By this action, plaintiffs seek to return the copyright owner to its proper place in exercising its exclusive rights, to recover money recently paid by ASCAP to defendants, to ensure that defendants cannot profit in the future from this deception and to deter them from future similar misconduct.

1. Plaintiffs allege copyright infringement arising under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. This Court has subject matter jurisdiction over this federal claim pursuant to 17 U.S.C. §§ 101 et seq., and 28 U.S.C. §§ 1331 and 1338. The Court has jurisdiction over Plaintiffs’ state law unfair competition claims pursuant to 28 U.S.C. § 1338(b). Further, this Court has supplemental jurisdiction over the remainder of Plaintiffs’ state law claims under 28 U.S.C. § 1367.

2. Venue lies in the Central District of California pursuant to 28 U.S.C. § 1391 (b) and (c). Plaintiff is informed and believes 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, Slash 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 California, and a partner in GNR.

6. Plaintiffs are informed and believe, and on that basis allege that at all times mentioned herein, William Bailey p/k/a Axl Rose (“Axl”) was an individual 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 times mentioned herein, Black Frog Music (“Black Frog”) was a California corporation, doing business in the State of California, and wholly owned by Axl.

8. Plaintiffs are informed and believe, and on that basis allege that at all times mentioned herein, Kobalt Music Publishing America, Inc., was a Delaware corporation, doing business in the State of California, with an office in Los Angeles, California; Kobalt Music Services America, Inc., was a Delaware corporation, doing business in the State of California, with an office in Los Angeles, California; and Kobalt Songs Music Publishing was a New York company, doing business in the State of California, with an office in Los Angeles, California. These entities are referred to collectively as “Kobalt.”

9. 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.

10. Plaintiffs are informed and believe, and on that basis allege that at all times mentioned herein, each of the defendants was the agent and/or co-conspirator of all 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.

11. In or around 1985, Axl, Slash and Duff, along with other individuals, formed GNR, a California general partnership.

12. By 1992, Axl, Slash and Duff were the only partners that remained as members of GNR (“GNR” or “the GNR partnership”).

13. On or around September 1, 1992, Axl, Slash and Duff entered into a written partnership agreement defining the rights and obligations of the GNR partners entitled “Memorandum of Agreement” (“Partnership Agreement”). A copy of the Partnership Agreement is attached hereto as Exhibit “A.”

14. On August 31, 1995, Axl sent Duff and Slash a written notice informing them of his withdrawal from the partnership, effective December 30, 1995. A copy of that notice is attached hereto as Exhibit “B.” Slash and Duff remained, and still remain, the only members of GNR, and own and control all GNR partnership assets.

15. After Axl’s withdrawal, Slash and Duff were the sole persons entitled to manage the affairs and act on behalf of GNR as the “Remaining Members.”

16. 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 revenues is set forth in the Partnership Agreement.

17. The copyrights in the GNR songs belong to and are registered in the name of Guns N’ Roses Music.

18. The GNR songs, created prior to December 30, 1995, are extremely valuable partnership assets that generate substantial income to the partnership, including publishing royalties. ASCAP collects royalties for the non-dramatic public performances of GNR songs and distributes them to the proper publisher and/or songwriter. Various third parties regularly obtain information from ASCAP to determine the identity of the publisher/administrator for songs they seek to license.

19. Plaintiffs are informed and believe that the GNR partnership has been designated as the Publisher/Administrator with ASCAP for the GNR songs since the 1980s and/or the early 1990s, and during that entire time, ASCAP has paid public performing royalties to the GNR partnership.

20. Plaintiffs are informed and believe that on or around May 26, 2005, Axl, without authority and without any notice to Slash, Duff or the partnership, for his own personal benefit, unilaterally directed ASCAP to change the Publisher/Administrator designation from the true copyright owner, Guns N’ Roses Music, to Axl’s wholly owned company, Black Frog, and his purported publisher Kobalt Songs Music Publishing — in effect improperly directing ASCAP to send all publishing monies for GNR songs to, or for the benefit of, Axl, Black Frog and Kobalt, instead of the partnership. Plaintiffs are informed and believe that, pursuant to the changed designation, ASCAP sent at least one royalty statement and payment to Axl, Black Frog and/or Kobalt. Plaintiffs are informed and believe that the royalty check issued from ASCAP to Axl, Black Frog and/or Kobalt was for around $92,000, which constituted royalty payments for one quarter of 2005. In addition, Plaintiffs are informed and believe that, as a result of the changed designation, potential licensees are being improperly directed to contact solely Black Frog and Kobalt, instead of the partnership, with respect to license requests and inquiries for GNR compositions.

21. Despite his voluntary withdrawal from GNR and lack of authority, Axl has wrongfully claimed: (a) the authority to be the spokesman for the GNR partnership with respect to the ongoing relationship with ASCAP and with respect to the collection of royalty payments from ASCAP; (b) the right to change the Publisher/Administrator designation with ASCAP from Guns N’ Roses Music to Black Frog and Kobalt Songs Music Publishing; (c) the right to act as the publisher/administrator and authorize and direct the use and exploitation of the copyrights, in derogation of the copyright owner’s rights; (d) the right to direct royalty revenue belonging to the copyright owner, Guns N’ Roses Music, to himself, Black Frog and/or Kobalt; and (e) the right to direct potential licensees to Black Frog and/or Kobalt through the change in Publisher/Administrator designation with ASCAP.

FIRST CAUSE OF ACTION
(Copyright Infringement Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

22. Plaintiffs incorporate by reference paragraphs 1 through 21, above, as though fully set forth herein.

23. 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).

24. Defendants infringed GNR’s copyrights by changing the designation of the Publisher/Administrator from the true, registered copyright owner, Guns N’ Roses Music, to Black Frog and Kobalt. In doing so they designated themselves as having the publishing/administration rights of the copyright owner, in derogation of the true copyright owners rights, to authorize the use and exploitation of the copyrights and collect the monies derived from exploitation from the copyrights.

25. As a result of the aforementioned infringement by Defendants, Plaintiffs have suffered, and will continue to suffer, damages in a currently unascertained amount.

26. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

SECOND CAUSE OF ACTION
(Breach of Fiduciary Duty Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

27. Plaintiffs incorporate by reference paragraphs 1 through 26, above, as though fully set forth herein.

28. At all times mentioned herein, Axl owed and owes fiduciary duties of loyalty, care, and good faith and fair dealing to Plaintiffs with regard to the GNR songs.

29. Axl has breached his fiduciary duty to Plaintiffs, by among other things: (a) wrongfully claiming the authority to be the spokesman for the GNR partnership with respect to the ongoing relationship with ASCAP and with respect to the collection of royalty payments from ASCAP; (b) improperly changing the Publisher/Administrator designation with ASCAP from Guns N’ Roses Music to Black Frog Music and Kobalt Songs Music Publishing; (c) improperly claiming the right to act as the publisher/administrator and authorize and direct the use and exploitation of the copyrights, in derogation of the copyright owner’s rights; (d) improperly directing royalty revenue belonging to the GNR partnership to himself, Black Frog and/or Kobalt; and (e) improperly directing potential licensees to Black Frog and Kobalt through the change in Publisher/Administrator designation with ASCAP.

30. Plaintiffs have been damaged as a result of Axl’s breach of his fiduciary duties to them in an amount that exceeds the jurisdictional limit of this Court. Plaintiffs presently cannot ascertain the exact amount of damages which they have sustained as a direct and proximate result of Axl’s various breaches, but will seek leave of Court to amend this complaint to state the exact amount of damages when it has been ascertained.

31. Defendant Axl Rose’s actions were malicious, fraudulent and oppressive, and undertaken in conscious disregard of Plaintiffs’ property rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish Axl and deter him from similar future conduct.

32. Plaintiffs are informed and believe, and on that basis allege that at all times mentioned herein, Black Frog and Kobalt conspired with Axl to commit the above referenced breaches of fiduciary duty and acted in furtherance of such conspiracy and were in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

33. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

THIRD CAUSE OF ACTION
(Fraud Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

34. Plaintiffs incorporate by reference paragraphs 1 through 33, above, as though fully set forth herein.

35. At all times mentioned herein, Axl owed and owes fiduciary duties of loyalty, care, and good faith and fair dealing to Plaintiffs with regard to the GNR songs.

36. Plaintiffs are informed and believe that on or around May 26, 2005, Axl, without authority and without any notice to Slash, Duff or the partnership, for his own personal benefit, unilaterally directed ASCAP to change the Publisher/Administrator designation from Guns N’ Roses Music to Black Frog Music and Kobalt Songs Music Publishing - in effect improperly directing ASCAP to send all publishing monies for GNR songs to Axl, Black Frog and Kobalt, instead of the partnership. Plaintiffs are informed and believe that, pursuant to the changed designation, ASCAP sent at least one royalty statement and payment to Axl, Black Frog and/or Kobalt. In addition, Plaintiffs are informed and believe that, pursuant to the changed designation, potential licensees have been improperly directed to contact solely Black Frog and Kobalt, instead of the partnership, with respect to license requests and inquiries.

37. Axl willfully omitted and concealed from Plaintiffs material facts regarding, among other things, his unilateral change of Publisher/Administrator designation with ASCAP and his, and/or his accomplices, receipt of royalty statements and payments from ASCAP.

38. Axl’s failures to disclose information and suppression of information were made with the intent to induce Plaintiffs to rely on Axl’s omissions.

39. In fact, Plaintiffs actually and reasonably relied on Axl’s fraudulent conduct. Had Axl disclosed to Plaintiffs the actual facts, they would have contacted ASCAP immediately to prevent the change in Publisher/Administrator designation, prevent ASCAP from sending any royalty statements and payments to any entity other than the GNR partnership and prevent ASCAP from directing potential licensees to contact solely Black Frog and Kobalt, instead of the partnership, to request licenses of GNR songs.

40. Plaintiffs have been damaged as a result of Axl’s fraud in an amount that exceeds the jurisdictional limit of this Court. Plaintiffs presently cannot ascertain the exact amount of damages which they have sustained as a direct and proximate result of Axl’s fraud, but will seek leave of Court to amend this complaint to state the exact amount of damages when it has been ascertained.

41. Defendant Axl Rose’s actions were malicious and oppressive, and undertaken in conscious disregard of Plaintiffs’ property rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish Axl and deter him from similar future conduct.

42. Plaintiffs are informed and believe, and on that basis allege that at all times mentioned herein, Black Frog and Kobalt conspired with Axl to commit the above referenced fraud and acted in furtherance of such conspiracy and were in some
manner responsible for the damage and injury suffered by Plaintiffs as alleged, herein.

43. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

FOURTH CAUSE OF ACTION
(Violation of the Unfair Competition Law, Business & Professions Code § 17200, et seq. Against Axl, Black Frog, Kobalt and Does 1 -10, inclusive)

44. Plaintiffs incorporate by reference paragraphs 1 through 43, above, as though fully set forth herein.

45. Defendants’ conduct was, and remains, both unfair and fraudulent pursuant to Section 17200 of the Business and Professions Code because: (a) Axl is disrupting the business of the partnership by falsely holding himself out to third parties as having authority to act unilaterally on behalf of the partnership by improperly directing ASCAP to change the Publisher/Administrator designation from Guns N’ Roses Music to Black Frog and Kobalt; (b) Axl, Black Frog and Kobalt are unfairly and fraudulently diverting royalties properly belonging to the partnership to themselves through false claims that Axl has the authority to act on behalf of the GNR partnership (c) by changing the Publisher/Administrator designation with ASCAP, Axl, Black Frog and Kobalt are unfairly competing with the GNR partnership by directing potential licensees to Black Frog and Kobalt, rather than the partnership, and are misleading potential licensees to contact Black Frog and Kobalt to negotiate and authorize licenses.

46. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

FIFTH CAUSE OF ACTION
(Interference With Prospective Economic Advantage Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

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

48. As a result of Axl’s being a former member of the GNR partnership, and continuing to derive benefits therefrom, Defendants were, and continue to be, specifically aware of the value of the partnership assets, the fact that ASCAP regularly distributes royalties for the non-dramatic public performances of GNR songs and the fact that potential licensees consult ASCAP to determine the Publisher/Administrator of songs they seek to license.

49. By the misconduct alleged above, Axl, Black Frog and Kobalt have interfered with Plaintiffs’ economic advantages, specifically including their ability to collect public performance royalties and license GNR songs to those who pay for such licenses.

50. Axl’s interference is not only wrongful, but is also fraudulent in that he is holding himself out to third parties as having the right or authority to change the Publisher/Administrator with ASCAP, when in fact, he does not. In addition, such conduct is also an unfair trade practice in violation of Business and Professions Code section 17200, et seq., as alleged above.

51. As a proximate result of Axl, Black Frog and Kobalt’s wrongful interference in the business of the partnership, the partnership has lost (and will continue to lose) substantial income, in an amount that exceeds the jurisdictional limit of this Court. Plaintiffs presently cannot ascertain the exact amount of damages which they have sustained and/or will sustain as a direct and proximate result of Axl, Black Frog and Kobalt’s various breaches, but will seek leave of Court to amend this complaint to state the exact amount of damages when it has been ascertained.

52. Axl, Black Frog and Kobalt’s wrongful interference in the business of the partnership was malicious, fraudulent and oppressive, and undertaken in conscious disregard of Plaintiffs’ property rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish Axl, Black Frog and Kobalt and deter them from similar future conduct.

53. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

SIXTH CAUSE OF ACTION
(Breach of Implied Covenant of Good Faith and Fair Dealing Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

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

55. The Partnership Agreement referred to above contained an implied covenant of good faith and fair dealing which obligated Axl to refrain from doing any act that would frustrate the agreed common purpose of the Partnership Agreement and disappoint the reasonable expectations of Slash and Duff.

56. Axl breached the implied covenant of good faith and fair dealing by: (a) after leaving the GNR partnership, wrongfully claiming the authority to be the spokesman for the GNR partnership with respect to the ongoing relationship with ASCAP and with respect to the collection of royalty payments from ASCAP; (b) improperly changing the Publisher/Administrator designation with ASCAP from Guns N’ Roses Music to Black Frog Music and Kobalt Songs Music Publishing; (c) improperly claiming the right to act as the publisher/administrator and authorize and direct the use and exploitation of the copyrights, in derogation of the copyright owner’s rights; (d) improperly directing royalty revenue belonging to the GNR partnership to himself, Black Frog and/or Kobalt; and (e) improperly directing potential licensees to Black Frog and Kobalt through the change in Publisher/Administrator designation with ASCAP.

57. As a result of Axl’s breach of the implied covenant of good faith and fair dealing, Plaintiffs have been damaged in a sum presently unknown, but in excess of this Court’s jurisdictional limit. Plaintiffs will seek leave of Court to amend this complaint to state the exact amount of damages when it has been ascertained.

58. Plaintiffs are informed and believe, and on that basis allege that at all times mentioned herein, Black Frog and Kobalt conspired with Axl to commit the above referenced breach of implied covenant of good faith and fair dealing and acted in furtherance of such conspiracy and were in some manner responsible for the damage and injury suffered by Plaintiffs as alleged herein.

59. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

SEVENTH CAUSE OF ACTION
(Declaratory Relief Against Axl and Does 1-10, inclusive)

60. Plaintiffs incorporate by reference paragraphs 1 through 59, above, as though fully set forth herein.

61. An actual controversy has arisen, and now exists, between Plaintiffs and defendant Axl Rose concerning their respective rights and duties.

62. Plaintiffs desire a judicial determination that following his voluntary withdrawal from GNR in 1995: (a) Axl had and has no authority to act on behalf of the GNR partnership with respect to the ongoing relationship with ASCAP, or any other collector or administrator of publishing monies; (b) Axl had and has no right to change the Publisher/Administrator designation with ASCAP, or any other collector or administrator of publishing monies, from the copyright owner, Guns N’ Roses Music, to Black Frog Music, Kobalt Songs Music Publishing or anyone else; (c) Axl had and has no authority to direct royalty statements or payments from any third parties, including ASCAP, relating to the GNR songs; (d) Axl had and has no authority to authorize the use and exploitation of GNR’s copyrights; and (e) the GNR partnership is the proper publisher/administrator for purposes of ASCAP or any other collector or administrator of publishing monies derived from the exploitation of GNR songs.

63. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

EIGHTH CAUSE OF ACTION
(Conversion Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

64. Plaintiffs incorporate by reference paragraphs 1 through 63, above, as though fully set forth herein.

65. Plaintiffs are informed and believe and thereon allege that defendants have taken control and ownership of royalty payments and/or checks from ASCAP belonging to Plaintiffs for their own benefit and use without authority as alleged herein. Defendants, and each of them, refused, and still refuse, to deliver the possession thereof to Plaintiffs and have unlawfully, wrongfully and willfully converted said property and rights of Plaintiffs to their own use.

66. As a direct and proximate result of the defendants’ conversion of Plaintiffs’ royalty payments and/or checks from ASCAP, Plaintiffs have been damaged in an amount not yet certain. Plaintiffs will seek leave of court to amend this complaint to state the exact amount of damages when same has been ascertained.

67. The actions of defendants were malicious, fraudulent and oppressive, and undertaken in conscious disregard of Plaintiffs’ property rights. Plaintiffs are therefore entitled to an award of punitive and exemplary damages in an amount sufficient to punish defendants and set an example to others.

68. WHEREFORE, Plaintiffs pray for Judgment as set forth herein.

NINTH CAUSE OF ACTION
(Unjust Enrichment Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

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

70. Defendants Axl, Black Frog and Kobalt have realized substantial monetary gain and benefit from interfering with the business opportunities of the partnership, including inducing ASCAP to pay Axl, Black Frog and/or Kobalt royalty payments to which they are not entitled and directing potential licensees, through ASCAP, to contact Black Frog and Kobalt for license requests. Plaintiffs are informed and believe that in or around May 2005, Axl, without authority, directed ASCAP to change the Publisher/Administrator designation from Guns N’ Roses Music to Black Frog Music and Kobalt Songs Music Publishing. Plaintiffs are informed and believe that, pursuant to that designation, ASCAP sent at least one royalty statement and payment to Axl, Black Frog and/or Kobalt.

71. Defendants Axl, Black Frog and Kobalt have been unjustly enriched to the damage, detriment and exclusion of Plaintiffs in an amount presently unknown, but which exceeds the jurisdictional limits of this Court. It would be fundamentally unjust and unfair to allow Axl, Black Frog and Kobalt to retain the benefits they received in such manner, and all such money must be paid to the partnership.

72. WHEREFORE, Plaintiffs pray for judgment as set forth herein.

TENTH CAUSE OF ACTION
(Injunctive Relief Against Axl, Black Frog, Kobalt and Does 1-10, inclusive)

73. Plaintiffs incorporate by reference paragraphs 1 through 72, above, as though fully set forth herein.

74. Axl, Black Frog and Kobalt’s wrongful conduct, described above, has caused, and will continue to cause confusion and immediate and irreparable injury to Plaintiffs and their ongoing and prospective business relationships.

75. Plaintiffs are also informed and believe and thereon allege that Axl, Black Frog and Kobalt, unless and until enjoined and restrained by order of this Court, will cause confusion and great and irreparable injury to Plaintiffs by falsely claiming authority to act on behalf of the partnership, directing to themselves royalty payments and other monies belonging to the partnership and otherwise wrongfully purporting to act on behalf of the GNR partnership.

76. Plaintiffs have no adequate remedy at law for the injuries they are presently incurring, and will incur in the future, as a result of the false claims of ownership, authority and control made by Axl, Black Frog and Kobalt.

77. Plaintiffs request injunctive relief directing Axl, Black Frog, Kobalt, and their attorneys and agents to: (a) refrain from representing to ASCAP that Axl has or had the authority to change the Publisher/Administrator designation; (b) refrain from representing to ASCAP or any other party, that Axl has or had the authority to authorize the use and exploitation of GNR’s copyrights; (c) 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; (d) refrain from interfering with ASCAP sending royalty statements and payments, relating to the GNR songs, to the partnership; and (e) hold all funds paid by ASCAP, or any other party, to Axl, Black Frog and/or Kobalt, in constructive trust on behalf of the partnership, to the extent such funds are derived form the use or exploitation of any of GNR songs.

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

ON THE FIRST CAUSE OF ACTION
(Copyright Infringement)

For 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 derive and continue to derive from their infringement of GNR’s copyrights.

ON THE SECOND CAUSE OF ACTION
(Breach of Fiduciary Duty)

ON THE THIRD CAUSE OF ACTION
(Fraud)

ON THE FOURTH CAUSE OF ACTION
(Unfair Competition)

Pursuant to Section 17203 of the California Business and Professions Code, for a disgorgement of any profits generated by Axl, Black Frog and Kobalt as a result of their unfair and fraudulent activities, restitution of any funds obtained from Plaintiffs, and any injunctive or other equitable relief the Court deems just and appropriate to remedy and prevent further acts of unfair competition by Axl, Black Frog and Kobalt.

ON THE FIFTH CAUSE OF ACTION
(Interference With Prospective Economic Advantage)

ON THE SIXTH CAUSE OF ACTION
(Breach of Covenant of Good Faith and Fair Dealing)

ON THE SEVENTH CAUSE OF ACTION
(Declaratory Relief)

For a declaration that following his voluntary withdrawal from GNR in 1995: (a) Axl had and has no authority to act on behalf of the GNR partnership with respect to the ongoing relationship with ASCAP, or any other collector or administrator of publishing monies; (b) Axl had and has no right to change the Publisher/Administrator designation with ASCAP, or any other collector or administrator of publishing monies, from the copyright owner, Guns N’ Roses Music, to Black Frog Music, Kobalt Songs Music Publishing or anyone else; (c) Axl had and has no authority to direct royalty statements or payments from any third parties, including ASCAP, relating to the GNR songs; (d) Axl had and has no authority to authorize the use and exploitation of GNR’s copyrights; and (e) the GNR partnership is the proper publisher/administrator for purposes of ASCAP or any other collector or administrator of publishing monies derived from the exploitation of GNR songs. Plaintiffs seek damages in an amount to be determined at trial, according to proof.

ON THE EIGHTH CAUSE OF ACTION
(Conversion)

For damages, punitive damages and an order directing that. Axl, Black Frog, Kobalt and all of their representatives, accountants, agents and employees return to the partnership all royalty payments, under their possession, custody or control, from ASCAP relating to Guns N’ Roses songs.

ON THE NINTH CAUSE OF ACTION
(Unjust Enrichment)

ON THE TENTH CAUSE OF ACTION
(Injunctive Relief)

For an injunction directing Axl, Black Frog, Kobalt, and their attorneys and agents to: (a) refrain from representing to ASCAP that Axl has or had the authority to change the Publisher/Administrator designation; (b) refrain from representing to ASCAP or any other party, that Axl has or had the authority to authorize the use and exploitation of GNR’s copyrights; (c) 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; (d) refrain from interfering with ASCAP sending royalty statements and payments,. relating to the GNR songs, to the partnership; and (e) hold all funds paid by ASCAP, or any other party, to Axl, Black Frog and/or Kobalt, in constructive trust on behalf of the partnership, to the extent such funds are derived from the use or exploitation of any of GNR songs.

Defendant W. Axl Rose (“Rose”) hereby answers the complaint filed by plaintiffs Saul Hudson p/k/a Slash, Michael McKagan p/k/a Duff and Guns N’ Roses, a California Partnership (collectively, “Plaintiffs”) as follows:

1. Rose denies the allegations set forth in Plaintiffs’ “Introduction.”

2. Answering paragraph 1, Rose admits that Plaintiffs purport to state claims for copyright infringement and that the Court has original jurisdiction over claims arising under the Copyright Act pursuant to 17 U.S.C. §§ 101 et. seq. and 28 U.S.C. §§ 1331 and 1338.

3. Answering paragraph 2, Rose admits that he resides in this District. Except as so admitted, Rose denies the allegations of paragraph 2 for lack of information and belief.

4. Answering paragraph 3, Rose admits that a California general partnership known as Guns N’ Roses existed and did business in the State of California.

5. Answering paragraph 4, Rose admits that Saul Hudson p/k/a Slash is an individual residing in the State of California and that Hudson was a member of a general partnership known as Guns N’ Roses.

6. Answering paragraph 5, Rose admits that Michael McKagan is an individual residing in the State of California and that McKagan was a member of a general partnership known as Guns N’ Roses.

7. Answering paragraph 6, Rose admits that he is an individual residing in the State of California. Except as so admitted, Rose denies the allegations of paragraph 6.

8. Answering paragraph 7, Rose admits that Black Frog is a company affiliated with him doing business in California.

9. Rose denies the allegations of paragraph 8 for lack of information and belief.

10. Rose denies the allegations of paragraph 9 for lack of information and belief.

11. Rose denies the allegations of paragraph 10 for lack of information and belief.

12. Rose admits the allegations of paragraph 11.

13. Rose admits the allegations of paragraph 12.

14. Answering paragraph 13, Rose admits that he executed a written partnership agreement and alleges that the document attached as Exhibit “A” to Plaintiffs’ Complaint speaks for itself.

15. Answering paragraph 14, Rose admits that he sent a written notice to the partnership on or about August 31, 1995, the contents of which speak for itself. Except as so admitted, Rose denies the allegations of paragraph 14.

16. Rose denies the allegations of paragraph 15.

17. Answering paragraph 16, Rose alleges that the written partnership agreement executed by the parties speaks for itself.

18. Answering paragraph 17, Rose admits that the copyrights in certain songs authored by Rose and other members of Guns N’ Roses were registered with the United States Copyright Office in the name of Guns N’ Roses Music. Except as so admitted, Rose denies the allegations of paragraph 17.

19. Answering paragraph 18, Rose admits that songs authored by members of Guns N’ Roses (including Rose) prior to December 30, 1995 are extremely valuable assets and generate substantial income. Rose further admits that ASCAP collects royalties relating to GN’R songs and that third parties contact ASCAP for information relating to the licensing of musical compositions. Except as so admitted, Rose denies the allegations of paragraph 18.

20. Answering paragraph 19, Rose is informed and believes, and based thereon alleges, that the Guns N’ Roses partnership was registered with ASCAP for some period of time and that ASCAP paid public performance royalties to the partnership.

21. Rose denies the allegations of paragraph 20.

22. Answering paragraph 21, Rose admits that he owns and has the right to control and administer his share of the copyrights in the songs he jointly authored with other members of Guns N' Roses. Except as so admitted, Rose denies the allegations of paragraph 21.

23. Answering paragraph 22, Rose realleges and incorporates by reference paragraphs 1-21 above as though set forth in full hereat.

24. Answering paragraph 23 , Rose admits that the copyrights in certain songs authored by Rose and other members of Guns N’ Roses were registered with the United States Copyright Office in the name of Guns N’ Roses Music. Except as so admitted, Rose denies the allegations of paragraph 23.

25. Rose denies the allegations of paragraph 24.

26. Rose denies the allegations of paragraph 25.

27. Answering paragraph 26, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

28. Answering paragraph 27, Rose realleges and incorporates by reference paragraphs 1-26 above as though set forth in full hereat.

29. Answering paragraph 28, Rose admits that partners in a partnership owe one another fiduciary and other duties. Except as so admitted, Rose denies the allegations of paragraph 28.

30. Rose denies the allegations of paragraph 29.

31. Rose denies the allegations of paragraph 30.

32. Rose denies the allegations of paragraph 31.

33. Rose denies the allegations of paragraph 32.

34. Answering paragraph 33, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

35. Answering paragraph 34, Rose realleges and incorporates by reference paragraphs 1-33 above as though set forth in full hereat.

36. Answering paragraph 35, Rose admits that partners in a partnership owe one another fiduciary and other duties. Except as so admitted, Rose denies the allegations of paragraph 35.

37. Rose denies the allegations of paragraph 36.

38. Rose denies the allegations of paragraph 37.

39. Rose denies the allegations of paragraph 38.

40. Rose denies the allegations of paragraph 39 for lack of information and belief.

41. Rose denies the allegations of paragraph 40.

42. Rose denies the allegations of paragraph 41.

43. Rose denies the allegations of paragraph 42.

44. Answering paragraph 43, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

45. Answering paragraph 44, Rose realleges and incorporates by reference paragraphs 1-43 above as though set forth in full hereat.

46. Rose denies the allegations of paragraph 45.

47. Answering paragraph 46, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

48. Answering paragraph 47, Rose realleges and incorporates by reference paragraphs 1-46 above as though set forth in full hereat.

49. Answering paragraph 48, Rose admits that he has derived benefits as a member of the Guns N’ Roses partnership and that ASCAP distributes public performance royalties. Except as so admitted, Rose denies the allegations of paragraph 48 for lack of information and belief.

50. Rose denies the allegations of paragraph 49.

51. Rose denies the allegations of paragraph 50.

52. Rose denies the allegations of paragraph 51.

53. Rose denies the allegations of paragraph 52.

54. Answering paragraph 53, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

55. Answering paragraph 54, Rose realleges and incorporates by reference paragraphs 1-53 above as though set forth in full hereat.

56. Answering paragraph 55, Rose admits that contracts in California contain ah implied covenant of good faith and fair dealing as provided by law.

57. Rose denies the allegations of paragraph 56.

58. Rose denies the allegations of paragraph 57.

59. Rose denies the allegations of paragraph 58.

60. Answering paragraph 59, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

61. Answering paragraph 60, Rose realleges and incorporates by reference paragraphs 1-59 above as though set forth in full hereat.

62. Rose admits the allegations of paragraph 61.

63. Answering paragraph 62, Rose admits that Plaintiffs are requesting a declaration in their favor as described in the complaint. Rose denies that Plaintiffs are entitled to such relief.

64. Answering paragraph 63, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

65. Answering paragraph 64, Rose realleges and incorporates by reference paragraphs 1-63 above as though set forth in full hereat.

66. Rose denies the allegations of paragraph 65.

67. Rose denies the allegations of paragraph 66.

68. Rose denies the allegations of paragraph 67.

69. Answering paragraph 68, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

70. Answering paragraph 69, Rose realleges and incorporates by reference paragraphs 1-68 above as though set forth in full hereat.

71. Rose denies the allegations of paragraph 70.

72. Rose denies the allegations of paragraph 71.

73. Answering paragraph 72, Rose denies that Plaintiffs are entitled to judgment as prayed, or at all.

74. Answering paragraph 73, Rose realleges and incorporates by reference paragraphs 1-72 above as though set forth in full hereat.

75. Rose denies the allegations of paragraph 74.

76. Rose denies the allegations of paragraph 75.

77. Rose denies the allegations of paragraph 76.

78. Answering paragraph 77, Rose admits that Plaintiffs are seeking injunctive relief as set forth in the complaint. Rose denies that Plaintiffs are entitled to such relief.

79. The complaint, and each purported cause of action set forth therein, fails to state facts sufficient to constitute a cause of action against Rose.

80. Plaintiffs’claims are barred, in whole or in part, by waiver, estoppel 28 and/or laches.

82. Plaintiffs’ claims are barred, in whole or in part, by applicable statutes of limitations.

WHEREFORE, Rose prays:

(1) That Plaintiffs take nothing by their complaint;
(2) For costs of suit, including reasonable attorneys’ fees; and
(3) For such other and further relief as the Court deems just and proper.

Pursuant to the Seventh Amendment of the United States Constitution and Federal Rule of Civil Procedure 38(b), Defendant and Counterclaimant W. Axl Rose hereby demand a trial by jury of all issues so triable.

1. Counterclaimant W. Axl Rose (“Rose”), erroneously sued herein as William Bailey p/k/a W. Axl Rose, brings this action to confirm his ownership of the copyrights in songs that he co-wrote with his former Guns N’ Roses bandmates.

2. Former Guns N’ Roses’ members Saul “Slash” Hudson (“Hudson”) and Michael “Duff’ McKagan (“McKagan”) have, for many years, waged a vindictive public relations campaign, spreading propaganda, dis-information and outright lies about Rose in a deliberate attempt to smear Rose, undermine his business and alienate him from fans. Among other things, Hudson and McKagan falsely claimed that Rose was responsible for the break-up of Guns N’ Roses, and have disparaged Rose’s work ethic, commitment to the band’s fans and contributions as a songwriter and performer.

3. Hudson and McKagan have also publicly denounced Rose’s ownership and right to control famous musical compositions he co-authored, including the huge Guns N’ Roses hits “Sweet Child O’ Mine,” “Welcome To The Jungle,” “Paradise City” and “November Rain.” In fact, Hudson and McKagan went so far as to sue Rose for infringing the copyrights in the songs that he co-wrote!

4. The lawsuit Hudson and McKagan filed was based on a faulty premise and was ill-advised from the start. What Hudson and McKagan attempted to portray as egregious misconduct by Rose was in fact — as Hudson and McKagan have now admitted — nothing more than a clerical error committed by ASCAP. Had Hudson and McKagan or their representatives bothered to pick up the phone and call, the clerical error could have been easily sorted out without the need for an utterly baseless lawsuit, which one can only assume has been filed for the purposes of self-publicity at Rose’s expense.

5. Hudson and McKagan’s vindictive attempt to aggrandize their own stature and re-write history through false media statements attacking Rose stands in sharp contrast to Rose’s conduct. Unlike his former band mates, Rose has at all times worked diligently to maintain the artistic integrity of the band, refusing to license Guns N’ Roses songs to potentially embarrassing projects, lighting to avoid the release of material that does not live up to Rose’s standards and those of the bands fans, and choosing to take the high road in the face of Hudson and McKagan’s attacks. Hudson and McKagan, by contrast, have told ever changing — and false — stories regarding the formation of the band.

6. In an effort to disparage Rose and alienate Rose’s fans, Hudson also made false accusations regarding the type of music Rose wanted to record. (Hudson falsely claimed Rose wanted to make a “techno industrial, Nine Inch Nails, Pearl Jam” record.) Most recently, on the eve of the release of a new GN’R album, Hudson is changing strategies by jumping on the Guns N’ Roses bandwagon and falsely claiming that he has been supportive/enthusiastic of a new Guns N’ Roses album, Rose’s efforts and the new line up. This is a blatant lie and yet another example of Hudson’s efforts to manipulate Rose, the media and GN’R’s fans, as Hudson has been anything but supportive. He has played a long, manipulative, ugly, complicated, deceptive game with other people’s lives and livelihoods, all the while having full knowledge of Rose’s positive intentions and true reasons behind all of Rose’s involvements with Guns N’ Roses. The motive behind Hudson’s new found enthusiasm is not known, but it is interesting that it happens to coincide with new Guns N’ Roses activity.

7. There is and can be no doubt that Rose owns and controls his share of the Guns N’ Roses compositions. In 1994, Rose, Hudson and McKagan signed a written co-administration agreement which clearly and unequivocally states that each of the individual band members owns, and is entitled to administer, his share of the copyrights in the songs which they wrote together.

8. Rose’s ownership and right to control his own musical works was again affirmed by the opinion of a “pre-litigation” expert McKagan hired to assist in making other claims against Rose.

9. 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, McKagan’s counsel of record herein, clearly and unequivocally opining that Rose 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.)

10. Notwithstanding this opinion from their own “expert,” Hudson and McKagan have persisted in making false claims against Rose in order to create publicity for themselves and once again, undermine Rose’s business. Enough is enough. Musicians confident in their talent should be able to leave a band without attacking their former bandmates or the band’s legacy. Hudson and McKagan have taken the exact opposite approach, choosing instead to attempt to label Rose in the media as a negative dictator. Hudson and McKagan have falsely accused Rose of (1) being responsible for the break-up of Guns N’ Roses, (2) causing Izzy Stradlin’s withdrawal from the band, the music business and the public eye, (3) forcing Steven Adler out of the band (when it was Hudson who was largely responsible for maneuvering this) and (4) coercing them (Hudson and McKagan) into signing over rights to the Guns N’ Roses name by refusing to go on stage (which is a complete fabrication and never happened), among other things. Contrary to his own false accusations, it was Hudson who refused to cooperate in replacing band members that he himself maneuvered out of Guns N’ Roses because of his own insecurities, egotism and jealousies regarding his songwriting abilities and musicianship. It was also Hudson who destroyed the band’s fan club and engineered the employment by Guns N’ Roses of Matt Sorum, thereby facilitating Hudson’s desire to change the approach/rhythm and direction of Guns N’ Roses by seeking to dictate the entire musical direction of what would become the follow up to the classic “Appetite For Destruction” album and sound. But Hudson then publicly placed responsibility for such decisions on Rose. Hudson also falsely, and publicly, claimed that Rose was responsible for the dissolution of the “Illusions”-era line Up, and falsely attributed the break-up to, among other things, musical differences - thereby purposefully and deceptively misleading the public as to Rose’s personal musical vision for the then line-up and future Guns N’ Roses recordings. There is abundant recorded evidence which includes Hudson’s performances in Rose’s possession disproving all of Hudson’s purposefully false, manipulative and calculated claims. Indeed, it was Hudson who attempted to manipulate public perceptions to aggrandize his own position by changing the musical course of the band away from the style expressed in the hugely successful album “Appetite For Destruction” instead to songs which Hudson created, regardless of their artistic quality or commercial appeal. In addition, on information and belief, Hudson personally sabotaged three attempts to make a traditional rock album as a follow up to the “Use Your Illusions” albums and engaged in consistent substance abuse that was extremely detrimental to the band.

11. Also contrary to the public perception Hudson attempted to foster — that he (Hudson) was solely responsible for key ideas, suggestions and arrangements on “Appetite For Destruction” — each and every solo recorded and performed by Hudson on that album was worked on before hand by Rose and Hudson together. Often working privately one on one with Rose, Hudson has concealed and attributed to himself nearly if not all work, ideas, changes, suggestions and arrangements made by, from or originating with Rose to Guns N’ Roses material.

12. Hudson’s attempts to aggrandize himself began as far back as his first meeting with Rose when Hudson answered an ad placed by Rose and Izzy Stradlin in The Recycler (a classified newspaper in Southern California). Notwithstanding the fact that he was answering Rose and Stradlin’s ad, Hudson attempted to persuade Rose to give up his own ideas for a band and join Hudson’s band instead.

13. After the band was formed, Hudson pursued multiple public and private strategies in an effort to control and dominate Rose for motives and desires known only to Hudson. Among other things, (1) Hudson appropriated Rose’s and Stradlin’s share of the initial advance, (2) refused to fire the band’s interim manager because he (Hudson) was not done “using her”, and (3) sabotaged Rose’s involvement in rehearsals and live performances and stood silently by (as if he knew nothing) while other band members and additional musicians mistakenly publicly and privately blamed Rose for circumstances that were in fact orchestrated by Hudson. Hudson constantly used any form of the media to falsely and maliciously paint Rose as the “bad guy” in his relationship with Hudson making public statements accusing Rose of being the most vile person he knows (while ironically being on record stating that Rose is the most honest person he knows) and showing up uninvited — and literally “guitar in hand” — to a performance of Rose’s new line-up in Las Vegas. Hudson has been clever enough to know when to publicly debase Rose, and even better at knowing when not to, so as to publicly appear as the “good guy” while allowing an interviewer to do Hudson’s “dirty work” for him. In fact, for well over ten years, Hudson has been the consummate press, photo and performance opportunist. He has aggressively courted and collected a small and highly vocal group of anti-Rose followers who range from the naïve to the highly negative, belligerent, ignorant, hostile, hateful and hurtful individuals. Hudson has encouraged this type of support in consort with a handful of anti-Rose media “wanna-bes” who appear to have no gainful employment other than to write negative or exaggerated commentary with regard to Rose and his involvement in what are often harmless non-events.

14. Now that Hudson and McKagan are no longer in Guns N’ Roses, they are acting as though their careers depend on strip-mining the band’s catalogue and attacking its lead singer in the media. Making a new record with a new band is one thing; attempting to sabotage a former band’s relationship with its fans in order to promote a new venture is simply wrong.

15. Hudson’s actions, both in and out of Guns N’ Roses, have been a complete betrayal of his alleged friendship and business relationship with Rose. They also belie the so called brotherhood and band loyalty Hudson has attempted to capitalize on in public attempts to denigrate Rose and paint him as the “bad guy” in Guns N’ Roses. Publicly courting and fostering anti-Rose sentiment among GN’R fans and the media, as Hudson has done, is wholly inconsistent with Hudson’s current claims of brotherhood, band loyalty and support. It is also simply wrong.

16. As the band’s founder and owner of the exclusive right to record and perform under the Guns N’ Roses name, Rose has worked diligently to maintain the artistic integrity and legacy of the band. The ongoing, baseless, vindictive and wholly unjustified efforts by Hudson and McKagan to denigrate Rose, his contributions and commitment to Guns N’ Roses must be stopped. A declaratory judgment should issue affirming Rose’s ownership and right to control his artistic works.

17. Rose is an individual residing in the County of Los Angeles, State of California.

18. Counterclaim defendant Saul Hudson is a musician professionally known as “Slash” who resides in the County of Los Angeles, State of California.

19. Counterclaim defendant Michael McKagan is a musician professionally known as “Duff" who resides in Seattle, Washington, but conducts business in the County of Los Angeles, State of California.

20. For many years, Rose, Hudson and McKagan performed and achieved great success together as the world famous musical group Guns N’ Roses. At various points in time, Jeffrey Isbell professionally known as Izzy Stradlin (“Stradlin”) and Steven Adler (“Adler”) were also members of the band.

21. This Court has jurisdiction over this Counterclaim pursuant to 17 U.S.C. 101 et seq., and 28 U.S.C. §§ 1331, 1338 and 1367.

22. 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 Rose’s claims occurred there.

23. Rose hereby realleges and incorporates by references paragraphs 1 through 22 above as though set forth in full hereat.

24. During their collaboration, Rose, Hudson, McKagan and Stradlin cowrote numerous musical compositions, including the huge Guns N’ Roses hits “Sweet Child O’ Mine,” “Welcome.To The Jungle,” “Paradise City” and “November Rain” (the “Compositions”).

25. As a co-author of the Compositions, Rose is a joint owner of the copyrights therein. Rose never executed a written assignment of his copyright interests in the Compositions to Guns N’ Roses Music, Hudson, McKagan or any Guns N’ Roses partnership.

26. In or about April 1994, Rose, Hudson, McKagan and Stradlin entered into a written settlement agreement and mutual release (the “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.

27. At the same time, Rose, Hudson, McKagan 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.”

28. 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 Rose, Hudson, McKagan and Stradlin’s respective publishing companies in agreed upon percentages set forth on a written schedule.

29. 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 herein.”

30. Consistent with the recitals, the parties expressly agreed in the Co-Administration Agreement that:
“The Publishing Companies, [defined as Rose’s, Hudson’s, McKagan’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 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....”
Co-Administration Agreement, p. 2,¶ 3 (emphasis added).

31. 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.” Rose is informed and believes, and based thereon alleges, that there is no signed instrument canceling or modifying the Co-Administration Agreement.

32. Notwithstanding the unequivocal language of the Co-Administration Agreement, Hudson and McKagan have taken the wholly unjustified position that Rose does not own and has no right to administer his share of the copyrights in the Compositions. Indeed, Hudson and McKagan have gone so far as to sue Rose for allegedly infringing the copyrights in the Compositions.

33. An actual controversy now exists between Rose, Hudson and McKagan wherein Rose contends that he owns and has the right to administer his share of the copyrights in the Compositions and Hudson and McKagan contend to the contrary.

34. 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.

35. Rose hereby realleges and incorporates by references paragraphs 1 through 34 above as though set forth in full hereat.

36. Although Rose never executed a written assignment of his ownership interests in the copyrights to the Guns N’ Roses 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.

37. Rose is informed and believes, and based thereon alleges, that Guns N’ Roses Music is not a legal entity, but is a name or “dba” under which Rose, Hudson, McKagan, Stradlin and Adler as individuals from time to time did business.

38. 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.

39. Paragraph 2 of the Co-Àdministration 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.”

40. 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.”

41. Rose has performed all obligations required of him under the Co-Administration Agreement, except as may have been excused by the counterclaim defendants’ material breaches.

42. Hudson and McKagan breached and repudiated the Co-Administration Agreement by suing Rose for copyright infringement and by publicly claiming that Rose does not own and has no right to control the administration of his musical works.

43. As a result of Hudson and McKagan’s material breaches, Rose has suffered damages in an amount not presently ascertained, but which exceeds the jurisdictional limit of this Court.

WHEREFORE, Rose prays for:

1. A declaration affirming that he owns and has the right to administer his share of the copyrights in the Compositions;
2. For compensatory damages in an amount to be proven at trial;
3. For costs of suit herein, including reasonable attorneys’ fees; and
4. For such other and further relief as the Court deems just and proper.