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COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
DONALD THOMAS SCHOLZ,
a/k/a ANTHONY COSMO,
Plaintiff Donald Thomas Scholz brings this action against Defendant Anthony Migliaccio for declaratory judgment as to the parties' respective rights and obligations under their written agreements, which Anthony Migliaccio has recently disclaimed.
1. Plaintiff Donald Thomas Scholz ("Scholz") is an individual living in Middlesex County, MA.
2. Defendant Anthony Migliaccio, a/k/a Anthony Cosmo, ("Migliaccio") is an individual who, on information and belief, lives in Utica, NY.
Venue and Personal Jurisdiction
3. Venue is proper in the business litigation session of this Court. Scholz lives in Middlesex County, this dispute involves business contracts between the parties, and the parties agreed to this venue in Paragraph 23( e) of their Band Participation Agreement (defined below).
4. Migliaccio also submitted to the personal jurisdiction of this Court in Paragraph 23(e) of the Band Participation Agreement (defined below) and in Paragraph 8.1 of the Songwriter Agreement (defined below). Moreover, Migliaccio is subject to the personal jurisdiction of the courts of the Commonwealth of Massachusetts by virtue of his having conducted business here in connection with both contracts at issue.
5. Scholz is a successful musician, composer, recording engineer, and record producer.
6. In or about 1975, Scholz founded the hugely successful rock music group BOSTON.
7. Scholz solely owns the trademark "BOSTON."
8. The following references to the various provisions of the parties' agreements are meant to provide pertinent examples of relevant• contract provisions; and not an exhaustive list of all Scholz's rights and Migliaccio's obligations under the agreements. Moreover, to the extent the contract provisions are paraphrased below, the contract documents themselves and not the paraphrasing herein shall control' the meaning of the agreements.
The Band Participation Agreement
9. Scholz and Migliaccio entered into a written agreement dated March 3, 2000, regarding Migliaccio's participation as a vocalist and side. musician in Scholz's musical projects. Scholz and Migliaccio also entered into a written Modification of Agreement dated March 3, 2000, a written Amendment of Agreement dated March 2002, and a written Amendment of Agreement dated May 15, 2005. Together, this agreement, modification, and two amendments shall be referred to herein as the "Band Participation Agreement."
Time Periods in the Band Participation Agreement
10. Migliaccio agreed under the Band Participation Agreement that through March 3, 2007, Migliaccio, on a non-exclusive basis, shall maim himself available and participate in such recording sessions, lives concerts, video productions, rehearsals, etc., in such places and at such times as Scholz may designate. (Under original agreement, the term of this obligation was through March 3, 2003 (¶ 6a),and under the 2002 Amendment, the term was extended through March 3, 2007 (¶ 1). (Original agreement, ¶¶ 1-2,3b).
11. Migliaccio agreed under the Band Participation Agreement that throughout the term of the Band Participation Agreement and for a period of five (5) years after the expiration thereof, in no event shall Migliaccio undertake to perform with or for (i) any musician, manager, or other individual or entity that is or has ever been affiliated with Scholz, BOSTON; or any Boston entity (as defined therein); or (ii) in connection with any project that is undertaken by or for the potential benefit of any such individual or entity. (Original agreement, ¶ 3d).
12. Several provisions of the Band Participation Agreement contain rights of Scholz and/or obligations of Migliaccio which do not terminate, even upon the end of the contract term. For example:
a. Migliaccio expressly agreed in writing that all of the services and performances he provides under the Band Participation Agreement are works made for hire, made for Scholz as a specially ordered or commissioned work as that term is defined in Section 101 of the U.S. Copyright Act [Title 17 U.S.C. § 1011], and that Scholz shall be entitled to, without limitation, the complete, unconditional, and exclusive worldwide ownership of and copyright in such works (as further set forth in the agreement) (original agreement, ¶ 2e);
b. Migliaccio expressly agreed in writing that, to the extent any of the services and performances he provides under the Band Participation Agreement are ever construed not to constitute work for hire, then Migliaccio has assigned to Scholz all of Migliaccio's rights, title, and interest therein, including the proceeds there from (original agreement, ¶ 2e);
c. Migliaccio expressly acknowledged and agreed:
that [Migliaccio] does not have and will not hereafter acquire by operation of this Agreement (including, without limitation, the exercise of any of the rights granted to. Scholz herein), any right, title or interest whatsoever, whether legal or equitable, in or to any Scholz Marks, including without limitation, the name "BOSTON" or in any name similar thereto and [Migliaccio] agrees that [Migliaccio] shall not at any time after the expiration or termination of this agreement use in any manner any such Scholz Marks, including without limitation the name "BOSTON" or any name similar thereto or making use thereof. Without limiting the foregoing, [Migliaccio] further expressly aggress, and it is the essence of this Agreement, that notwithstanding that Artist's name or likeness may be used to [promote BOSTON] or that [Migliaccio] may be referred to by Scholz, Scholz' Record company or any other person or entity as being a "member of" or a "part of' "BOSTON" or any other Boston Entity, [Migliaccio] shall have no right, title or interest, whether legal or equitable, in or to such name nor to any proceeds derived from the use of exploitation of such name, nor shall any such right, title or interest attach or transfer or be deemed to attach or transfer to [Migliaccio]. [Original agreement, 10a];
[Emphasis added]; and
d, Migliaccio expressly agreed in writing that he would not, either personally, or by means of press agents, publicity agencies, advertising agencies or others, circulate, publish or otherwise disseminate any news stories or articles, books or publicity containing Migliaccio's name and/or relating directly or indirectly to his engagement by Scholz, the subject matter of the Band Participation Agreement, the services to be rendered thereunder, or anything concerning Scholz or any BOSTON entity unless the same were first approved in writing by Scholz. (Original agreement, ¶ 10b).
13. Migliaccio's agreement to the long life of certain of these rights is further set forth expressly as follows:
Neither the termination of this Agreement for any reason. nor the expiration of the term hereof shall affect Scholz's rights with respect to the exploitation of [Migliaccio's] name, likeness or work product (including without limitation, work for hire and Artist's Compositions) or otherwise prevent Scholz from the continued use thereof as set forth herein. [Band Participation Agreement, ¶ 6c].
[ ... ]
Artist hereby grants to Scholz, any Record Company, or other entity to which Scholz delivers any of the Masters recorded hereunder and/or any of Scholz's designees, without limitation or restriction, the worldwide right in perpetuity to use and to permit other to use and publish Artist's name [...], likeness, other identification, and biographical material.... [Band Participation Agreement, ¶ 9a].
The Songwriter Agreement
14. Scholz and Migliaccio also entered into a written agreement, also dated March 3, 2000, regarding certain compositions by Migliaccio. Scholz and Migliaccio executed an amendment thereto dated May 22, 2000. Together, this agreement and amendment shall be referred to herein as the "Songwriter Agreement."
15. Under the Songwriting Agreement, Migliaccio, inter alia, sold, transferred, and assigned to Scholz, d/b/a Hideaway Hits, one hundred percent (100%) of Migliaccio’s interest in five compositions listed therein, "including without limitation, the copyrights therein and any and all renewals and/or extensions thereof throughout the universe, in perpetuity." (Emphasis added). Of those five compositions, four were written solely by Migliaccio, and one was written 50-50% by Migliaccio and his father, Francis Migliaccio, a/k/a Fran Cosmo.
Scholz's Performance of Contractual Obligations.
16, Scholz has performed all, or substantially all, of his obligations under the Band Participation Agreement, including but not limited to the compensation set forth in Paragraph 4.
17. Scholz has performed all, or substantially all, of his obligations under the Songwriter Agreement, including but not limited to the compensation set forth in Paragraph 3.
18. Indeed, Scholz has paid Migliaccio in excess of the agreed upon advance to Migliaccio under both the Band Participation Agreement and the Songwriter Agreement, without any requirement that he do so.
19. Migliaccio's advances are as yet un-recouped under both the Band Participation Agreement and the Songwriter Agreement.
Migliaccio's Disclaiming of Band Agreement and Songwriter Agreement.
20. In a letter to Scholz dated November20, 2006, Migliaccio, through a representative in Philadelphia, stated:
Notice is hereby given as of November 20, 2006, that any and all Agreements, addendums and attachments, entered into on March 3rd, 2000, by and between Anthony Migliaccio aka/apa Anthony Cosmo an individual residing at [Redacted by thirdstage.ca], and Donald Thomas Scholz ("Boston") an individual of [Redacted by thirdstage.ca], in addition to any third party assignments of individuals, heirs, corporations or any other entity, is [sic] now considered terminated and void. Failure to respond within twenty (20) days of today's date of the aforementioned agreements dated March 3rd, 2000 by and between the parties, Anthony Migliaccio and Donald Thomas Scholz, would affirm that all agreements between the parties are nullified, terminated and void of all terms, conditions and responsibilities set forth within the agreements. [Emphasis added.]
21. Scholz, through counsel, responded in a letter dated December 8, 2006, to Migliaccio's representative that the agreement remains in full force and effect.
22. As set forth above, Paragraphs 10a and 10b of the Band Participation Agreement prohibit Migliaccio from, inter alia, publicizing himself or his participation with BOSTON, unless he has prior written approval from Scholz.
23. Migliaccio has breached those provisions on at least two occasions:
a. in January 2006, Migliaccio and Fran Cosmo performed at a hotel in St. Croix, U.S. Virgin Islands, billed as "BOSTON"; and
b. Migliaccio's current representative, Anthony Messina of American Artists Entertainment Group in Philadelphia, PA, lists Migliaccio on his website as "Anthony Cosmo of the band BOSTON," and includes numerous references to BOSTON, photographs of BOSTON, and a link to BOSTON's website.
25. Scholz's counsel sent Migliaccio a letter after the St. Croix performance informing him that it violated the Band Participation Agreement.
26. Under Paragraph 20 of the Band Participation Agreement, Scholz has the right to terminate the agreement for, inter alia, Migliaccio's unauthorized use of the trademark BOSTON. In the event of such termination, Migliaccio shall be deemed to have forfeited any rights he may have to any unpaid net artist's royalties or unpaid Tour Share (as defined in the Band Participation Agreement) otherwise payable to Migliaccio thereunder.
27. Scholz repeats and realleges herein all the foregoing paragraphs.
28. This Court has jurisdiction to hear a declaratory judgment claim under Mass. Gen. L. ch. 231A, § 1.
29. An actual controversy exists among the parties as to their respective rights, duties, status, and legal relations with respect to the Agreement.
30. Specifically, the controversy entails what rights were permanently granted to Scholz under the Band Participation Agreement and the Songwriting Agreement, and what continuing obligations Migliaccio has under those agreements, which Migliaccio has purported to declare void.
31. Scholz has substantially performed all of his obligations under the Band Agreement and the Songwriter Agreement to date.
32. Scholz seeks a declaration that the Band Participation Agreement and the Songwriting Agreement remain in full force and effect.
Breach of Band Participation Agreement
33. Scholz repeats and realleges herein all the foregoing paragraphs.
34. Scholz and Migliaccio entered into the Band Participation Agreement, which is a binding agreement.
35. Migliaccio has breached the Band Participation Agreement by, inter alia, violating Paragraphs 10a and 10b thereof as set forth above in Paragraph 23.
36. Scholz has been harmed as a result.
37. Scholz repeats and realleges herein all the foregoing paragraphs.
38. As a result of Migliaccio's foregoing breaches, Scholz has been irreparably harmed.
39. Moreover, if Migliaccio were to, in the future, violate Paragraphs 3d, 10a, and/or 10b, Scholz would be irreparably harmed.
40. Migliaccio has disclaimed all of his obligations under the parties' agreements.
41. Scholz is entitled to a permanent injunction ordering Migliaccio to comply with Paragraphs 3d, 10a, and 10b of the Band Participation Agreement.
Request for Relief
WHEREFORE, Plaintiff Donald Thomas Scholz asks this Honorable Court to:
i. Under Count I, declare that the Band Participation Agreement and the Songwriting Agreement remain in full force and effect;
ii. Under Count II, enter judgment in favor of Scholz and against Migliaccio;
iii. Under Count III, enter a mandatory permanent injunction against Migliaccio ordering him to comply with Paragraphs 3d, 10a, and 10b of the Band Participation Agreement.
vi. Award Scholz his costs and attorneys' fees; and
vii. Award Scholz any other relief which this Court deems appropriate.
DONALD THOMAS SCHOLZ,
By his counsel,
Susan E. Stenger
BBO No. 555552
BURNS & LEVINSON LLP
125 Summer Street
Boston, MA 02110