Van Dyke Complaint Filed

[1]
Peter L. Skolnik, Esq.

CLARK GULDIN, LLC
20 Church Street
Montclair, New Jersey 07042
973.707-5346

Attorneys for Plaintiff
Jason Van Dyke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JASON VAN DYKE,

Plaintiff,

v.

WESLEY SCHULTZ, JEREMY FRAITES, THE
LUMINEERS, LLC, and DOES 1-10 et al.,
Defendants.

Civ No.: )

VERIFIED COMPLAINT

Jury Trial Demanded

Plaintiff Jason Van Dyke (Van Dyke), by his attorneys Clark Guldin, L.L.C., as and for
his complaint against Defendants Wesley Schultz (Schultz), Jeremy Fraites (Fraites), The
Lumineers, LLC (LLC) and Does 1-10, alleges:

NATURE OF THE ACTION
1. This is an action for declaratory and injunctive relief, damages (including exemplary
damages), and attorneys fees for willful and repeated violations by various defendants of
plaintiff Jason Van Dykes (Van Dyke) joint copyright ownership rights under the United
States Copyright Act, 17 U.S.C. 101 et seq., plaintiffs co-ownership rights in numerous sound
recordings and nine jointly-authored musical works and in his partnership rights, property and
assets under both the Copyright Act and the Uniform Partnership Act of 1997 as adopted by
Case 2:14-cv-03296-CCC-JBC Document 1 Filed 05/22/14 Page 1 of 24 PageID: 1
[2]
the State of New Jersey in N.J.S.A. 42:1 et seq. breach of contract, promissory estoppel, breach
of fiduciary duty, wrongful conversion, and unjust enrichment and misappropriation of plaintiffs
property rights.
JURISDICTION AND VENUE
2. This action is brought, and subject matter jurisdiction lies within this Court, under 28
U.S.C. 1331 and 1338. This Court has federal question jurisdiction because Van Dyke seeks
a declaratory judgment and damages against the named Defendants under the Copyright Act of
1976, 17 U.S.C. 101 et seq. This Court has supplemental jurisdiction under 28 U.S.C. 1367
over any claims asserted that arise under state law, including without limitation, claims seeking
an accounting, because such claims are integrally interrelated with Van Dykes federal claims
and arise from a common nucleus of operative facts.
3. Venue lies within this Court under 28 U.S.C. 1391(b)(1)(3), 1391(c), 1391(d), and
1400(a) because a substantial part of the events or omissions giving rise to Van Dykes claims
including but not limited to the formation of a business partnership among Van Dyke and
Defendants Schultz and Fraites, and the creation and recording of the musical compositions at
issue occurred in the District of New Jersey.
THE PARTIES
4. Plaintiff Jason Van Dyke is a professional recording artist, songwriter,
instrumentalist, live musical performer and businessman in the entertainment industry. A former
resident of Clifton and Jersey City, New Jersey, he now resides in Hayward, California. He has
been continuously engaged in professional and commercial activities in the entertainment
industry for approximately fourteen years, including recording and rendering live instrumental
and vocal performances in New Jersey.
5. Defendant Wesley Schultz is a professional recording artist, songwriter,
resident of Ramsay, New Jersey, he now resides in Denver, Colorado. He has been engaged in
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professional and commercial activities in the entertainment industry for many years, including
recording and rendering live instrumental and vocal performances in New Jersey.
6. Defendant Jeremiah Fraites is a professional recording artist, songwriter,
resident of Ramsay, New Jersey, he now resides in Denver, Colorado. He has been engaged in
professional and commercial activities in the entertainment industry for many years, including
recording and rendering live instrumental and vocal performances in New Jersey.
7. Defendant The Lumineers, LLC is a Colorado limited liability company, which on
information and belief is the successor in interest to the partnership formed among Van Dyke,
Shultz and Fraites and the transferee of that partnerships property and assets.
8. Defendants Does 1-10 are individuals and entities presently unknown, who transacted
business with Defendants Schultz and Fraites exploiting the property and assets of Van Dyke
without his consent and without payment of appropriate compensation.
FACTS COMMON TO ALL COUNTS
A. Van Dyke joins band 6 Cheek with Defendants Schultz & Fraites
9. In the summer of 2008, Van Dyke became the third member of a musical group,
joining Defendants Shultz and Fraites after responding to an advertisement they posted on the
Internet site known as Craigs List.
10. The band was known as 6 Cheek when Van Dyke joined. At Van Dykes urging,
the band name was changed to Wesley Jeremiah. In 2009, while Van Dyke was a member,
the bands name was changed again to its current name, The Lumineers and that name
appears on an internet podcast of a live performance given by Van Dyke, Schultz and Fraites
during July 2009.
B. Defendants Confirmation of a Business Partnership With Van Dyke
11. Following Van Dykes acceptance into the band, he communicated with Defendants
Schultz and Fraites regarding the business relationship that would prevail among them. Van
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Dyke explained to Schultz and Fraites that since he was making financial contributions to
development of the band, he did not want to be simply a hired hand. Instead, Van Dyke stated
his requirement to be a full-fledged business partner in the band. Schultz and Fraites confirmed
that Van Dyke would be such a partner, on equal footing with Schultz and Fraites and with equal
rights. Van Dyke, Schultz and Fraites agreed that the partners would contribute equally to
partnership expenses and divide equally any profits generated by band activities, including live
performances and recordings.
C. Van Dykes Reliance on Confirmation of a Business Partnership
12. In reliance on representations that he was an equal business partner in the band, Van
Dyke invested substantial time, energy and personal funds into the band, and enthusiastically
participated with Schultz and Fraites in the bands activities. Schultz and Fraites requested that
Van Dyke participate in joint songwriting sessions, and repeatedly requested that Van Dyke
appear and perform at recording sessions they held, typically in their respective family homes in
Ramsey, New Jersey. Van Dyke obliged; and because he understood that he was a partner, he
neither expected nor received any payment for participation in rehearsals, recording sessions,
songwriting sessions or any other band activities. Instead, Van Dyke considered all of his
participation, activities and contributions to be continuing investments in the bands
development and future success.
D. Confirmation of Equal Ownership of Masters and Copyrights
13. Simultaneously with confirmation of his partnership, Van Dyke sought clarification
from Schultz and Fraites regarding his role and property interest in songs he was creating and
would in future create in collaboration with Schultz and Fraites. On this issue as well, Schultz
and Fraites agreed that Van Dyke would be afforded an equal ownership interest to all recordings
made by the band i.e., to the so-called master recordings and they further confirmed that
copyright ownership in all songs to which Van Dyke contributed as a co-author would be equally
divided amongst the three band members. Van Dykes continuing participation with Schultz and
[5]
Fraites in all of those recording and songwriting activities was undertaken in full reliance on the
property and copyright ownership representations made to him by Schultz and Fraites.
E. Participation in Performances, Recordings & Songwriting
14. Van Dyke rehearsed and performed publicly with the band in various clubs and live
performance venues, primarily in New York and New Jersey. At rehearsals, the band prepared
selected musical works for live performances. Van Dyke, Schultz and Fraites typically shared
expenses equally and divided the remaining profits derived from live shows equally amongst
themselves.
15. The band also engaged in songwriting sessions at regular band rehearsals, and it
worked on developing original musical works. Van Dyke, who had studied music theory
formally for many years, actively assisted in organization and creation of the structure and
harmonic components of songs that the band created collectively.
16. Schultz often brought basic unfinished and unstructured elements of a prospective
song to band rehearsals usually created on his guitar; Van Dyke would then work with Schultz
and Fraites as the three musicians sought to create a structural, harmonic and rhythmic format
for the song. Sometimes, Van Dyke would add harmonic elements to a song by playing them on
piano or organ, a process used during creation of the musical compositions entitled Scotland
and Gun Song. On Scotland Van Dyke also created descending complementary melodies,
which he played on a Yamaha synthesizer keyboard through an organ patch. On Gun Song,
Van Dyke added piano chord voicings, and expanded and modified the songs harmonic
structure.
17. On or about November 25, 2008, in an e-mail communication, Schultz again
confirmed that Van Dyke should receive an equal share of the songs Scotland and Gun Song,
and that all recordings would be co-owned by Van Dyke.
18. Besides creating instrumental components and harmonies, Van Dyke created and
arranged vocal harmonies for placement in and throughout various songs he co-authored with
Schultz and Fraites. On a song titled Classy Girls Van Dyke added vocal harmonies
[6]
throughout, and set the overall arrangement and format of the song. Besides Classy Girls, such
vocal harmonies, created and in part sung by Van Dyke, were included on songs entitled
Morning Song (original version), Darlene and Flowers In Your Hair. Introducing vocal
harmonies was a new musical element for the band, previously absent from earlier musical works
created solely by Schultz and Fraites, largely because Fraites was not a frequent singer on the
bands recordings
19. At rehearsals it was common for Van Dyke, Schultz and Fraites to discuss amongst
themselves the musical elements and arrangement of each co-authored song, with reasonable
consideration being given to each members suggestions until each co-authored song was
deemed complete and acceptable to all members. For example, although the work entitled
Submarines was initially developed by Fraites, it was completed through the collaborative
efforts of all of the bands members during numerous songwriting sessions. Some songs,
including ones that preceded Van Dykes joining with Schultz and Fraites, underwent further
revision by the three partners. For example, elements of Morning Song existed before Van
Dyke joined Schultz and Fraites, but became subject to almost constant revision by the three
musicians.
20. At the bands live shows, Van Dyke typically performed on piano, organ and drums,
and sang back-up vocals. For dramatic effect the band would occasionally switch instruments;
Van Dyke would play either piano or drums, while Fraites alternately switched from piano to
drums. Schultz typically played guitar, and sang lead vocals as the bands front-man.
21. In the fall of 2008, Van Dyke recommended that the band explore additional venues,
such as the college circuit, to expand the bands profile and income, and that the partners should
engage a manager to handle much of the business affairs and promotion for the group. Shortly
thereafter, Van Dyke introduced Schulz and Fraites to a prospective manager, Katie Arnold
(Arnold:), and invited her to attend a live performance by the band. After Van Dyke pursued
a continuing dialog with Arnold, by early 2009 she had become the bands official manager and
assisted in implementing business affairs and promoting the bands activities and public profile.
[7]
22. Arnold assisted with developing the bands biographical materials and creation of a
band website on the Internet. Her management services also included communicating with third
parties regarding live performance opportunities, and she often collected and disbursed the
income from sales of the bands recordings at live performances. Van Dyke, Schultz and Fraites
each contributed equally to a monthly management fee paid to Arnold, whose management
relationship with the band continued until late March 2011.
23. To further Van Dykes suggestion that the band expand its live performances beyond
clubs in the greater New York-New Jersey area. Van Dyke helped Arnold arrange the bands
first East Coast mini-tour from Washington, D.C. through Boston during March 2009. Van
Dyke also arranged for his relatives to provide free lodging accommodations for the band.
F. Songs Co-authored by Van Dyke & Defendants Schultz & Fraites
24. During Van Dykes active involvement in the band with Schultz and Fraites, Van
Dyke contributed to the writing and creation of the following nine musical compositions (the
Compositions):
a) Scotland
b) Gun Song
c) Morning Song
d) Submarines
e) Red Hands
f) Classy Girls
g) Flowers In Your Hair
h) Darlene
i) Life In The City
25. Musicians engaged in creation of joint works under the Copyright Act will often
negotiate among themselves to arrive at an agreed-upon division of copyright ownership rather
than equal shares then reflect the negotiated division in a form of written memorandum referred
to in the music industry as a split sheet. Van Dyke, Schultz and Fraites did not follow that
[8]
procedure. No split sheets were negotiated or executed, resulting in equal-share co-ownership
of the nine joint works a result consistent with the equality of ownership interests agreed to
among Van Dyke, Schultz and Fraites and upon which Van Dyke relied.
26. During Van Dykes active involvement with Schultz and Fraites, Van Dyke rendered
recorded performances on audio recordings of the following compositions (the Recorded
Performances):
a) Scotland
b) Gun Song
c) Red Hands
d) Classy Girls
e) Morning Song
27. Although Van Dyke did not record the works entitled Darlene, Submarines and
Flowers In Your Hair, it was Van Dykes understanding that as a partner, he was an equal
owner of the master recordings of those compositions made and subsequently marketed by the
band. To Van Dykes knowledge, the work entitled Life In the City has not yet been recorded.
G. Commercial Release of the First EP
28. In March 2009 the band released its first recording, i.e., a multi-song extended play
or EP recording, entitled WESLEY JEREMIAH (the First EP), which included the
following recorded works:
a) Scotland
b) Red Hands
c) Gun Song
d) White Lie
e) Darlene
f) Dont Wanna Go
g) Everyone Requires A Plan

[9]
29. Van Dyke co-authored the following Compositions on the First EP:
a) Scotland
b) Gun Song
c) Red Hands
d) Darlene
30. The First EP was primarily marketed and sold by the band at live shows. The
proceeds from the recordings were equally divided amongst Van Dyke, Schultz and Fraites.
H. Departure of Schultz and Fraites to Colorado
31. Following the March 2009 mini-tour, the partners discussed spending Summer 2009
writing and recording new material to pursue a further tour in Fall 2009. The band played a few
shows during the summer, but when Van Dyke inquired about lack of progress in developing
new material, Schultz revealed that he and Fraites had decided to move to Denver, Colorado, but
had not asked Van Dyke to join them because we didnt think youd go.
32. Van Dyke was shocked by Schultz and Fraitess decision to relocate, but was
mollified by their agreement to continue recording material the three had completed, and
discussions that suggested to Van Dyke he would continue to perform as a member of the band
on any East Coast tour.
33. Consistent with those understandings, during August and September 2009, Van Dyke
obliged and willingly participated in recording sessions in full reliance on continuation of his
partnership interest in all proceeds derived from exploitation of the Compositions and Recorded
Performances. During those sessions Van Dyke, Schultz and Fraites recorded material to be
included on the bands second recording, an EP entitled THE LUMINEERS (the Second
EP).
34. In or about October 2009, Schultz and Fraites moved to Denver, Colorado. They
returned to the East Coast for Christmas 2009, and played a live date with Van Dyke during
December 2009 at the venue Puck Live in Doylestown, Pennsylvania.
[10]
35. However, in March 2011, Schultz and Fraites returned to the East Coast to perform
as part of a month-long residency at the live performance site known as The Living Room in
New York City. During that residency, Van Dyke attended a show and spoke with Schultz and
Fraites, but they failed to enlist his services as a musician to perform at The Living Room,
notwithstanding their prior acknowledgment to Van Dyke he would be included in East Coast
performances by the band.
36. Upon information and belief, at some time after Shultz and Fraites moved to
Colorado, without the knowledge or consent of Van Dyke Shultz and Fraites formed an entity
known as The Lumineers, LLC (LLC) as successor in interest to their partnership with Van
Dyke, and purported to transfer the property and assets of the partnership to LLC.
I. Commercial Release of the Second EP
37. Upon information and belief, on or about December 15, 2009, Schultz and Fraites
released the Second EP on their own home-grown ersatz record label i.e. 6 Cheek
Records. The Second EP bears a copyright year date of 2009.
38. The Second EP includes the following recordings and compositions co-written by
Van Dyke with Schultz and Fraites in Fall 2009.
a) Flowers In Your Hair
b) Classy Girls
c) Submarines
d) Gun Song
e) Scotland
Of these, Van Dyke also performs on Gun Song and Scotland, and perhaps on Flowers
In Your Hair. A version of Classy Girls that includes Van Dykes performance was
recorded during the Summer 2009 recording sessions for the Second EP, but was released
only later, when Schultz and Fraites issued a revised edition of one of their albums in Japan.

[11]
J. Post-2009 Activities of Defendants
39. Upon information and belief, after release of the Second EP it was sold at the
Doylestown, Pennsylvania show at which Van Dyke performed in December 2009, and
thereafter was continuously sold by or on behalf of Schultz and Fraites at live tour dates
throughout the United States and on Amazon.com from late 2009 through the first quarter of
2012.
40. Van Dyke has never received a copy of the finished commercial Second EP.
Knowledge of sales of the Second EP has been provided to Van Dyke by Arnold, and Van Dyke
has determined that Schultz and Fraites have placed record manufacturing orders at a CD
pressing and manufacturing facility in New Jersey known as Oasis Disc Manufacturing.
41. Upon information and belief, Schultz and Fraites have repeatedly ordered records
directly from Oasis for shipment to a designated address in Colorado. Those orders confirm that
Schultz and Fraites have actively marketed the Second EP, which was recorded and produced
with Van Dykes participation and financial assistance. A management representative of Schultz
and Fraites has also confirmed to Van Dyke that the bands current management has created
additional duplicates of the Second EP to sell at Lumineers shows.
42. Van Dyke has received no accounting or payment from Schultz and Fraites for any
sales of the First EP after the summer of 2009, from any sales of the Second EP, or from any
marketing of musical works embodied on the several subsequent audio and audio-visual
recordings released and/or marketed by Schultz and Fraites, including recordings embodying
Van Dykes Recorded Performances and co-authored Compositions.
43. When Schultz and Fraites moved to Denver, they took with them all of the master
recordings they made with Van Dyke, and have assumed full control over the Compositions and
the Recorded Performances without Van Dykes approval or authorization.
44. To date, Defendants Schultz and Fraites have neither accounted to Van Dyke for any
sales of the bands recordings, nor paid any of the income Schultz and Fraites have received from
those sales despite inquiries from Van Dyke. Schultz and Fraites continue to assert full control
[12]
over the master recordings, and to exploit the Compositions and Recorded Performances
throughout the world without Van Dykes approval or authorization, and have provided no notice
or accounting to Van Dyke of their worldwide activities pertaining to the Compositions and
Recorded Performances.
K. False Date of Creation Set Forth by Schultz and Fraites in US Copyright
Registrations
45. On or about January 14, 2013, two copyright registration forms were filed in the
United States Copyright Office on behalf of Schultz and Fraites. Those registrations bear a false
date of creation of the registered musical works. Specifically, the year 2011 is provided on the
registration certificates as the Date of Creation, promoting the false impression that the
Compositions entitled, Morning Song, Classy Girls Flowers In Your Hair and
Submarines were created after Van Dyke was no longer actively performing with, or
participating in band activities.
46. The false Date of Creation 2011 concealed that all of the Compositions co-authored
by Van Dyke had in fact been completed, recorded and initially released in 2009 during Van
Dykes active involvement with the band. Further, Van Dykes name was not included as a co-
author on the copyright registrations Schultz and Fraites filed in January 2013.
L. Exploitation of the Bands First Album and Subsequent Recordings
47. Upon information and belief, in the first quarter of 2012 Schultz and Fraites signed a
record deal with the independent Nashville, Tennessee record label Dualtone Records
(Dualtone), a division of Dualtone Music Group, Inc. The Dualtone agreement called for
distribution of an album to be self-financed by Schultz and Fraites with the assistance of their
new management company, Onto Entertainment, based in Seattle, Washington. Upon
information and belief, the deal was also conditioned on Schultz and Fraites retaining ownership
of all of master recordings delivered to Dualtone.
[13]
48. On or about April 3, 2012 the bands eponymously-titled first full length album, The
Lumineers (the First LP) was released by Dualtone and sold on the Internet in Apples iTunes
store.
49. Upon information and belief, the First LP was initially released for access via digital
Internet downloads and through purchase of a physical CD. Eventually the First LP was also
released in vinyl form at a price significantly higher than that for the CD or digital download
versions.
50. Upon information and belief, the First LP has also been licensed to Dine Alone
Records in Canada, to Inertia in Australia and to Decca Records and Universal Music for the
rest of the world including Japan. The First LP has been a major commercial success, on
information and belief attaining worldwide album sales of several million copies. Upon
information and belief, in January 2013 the First LP peaked at number 2 on Billboards 200
chart a weekly listing of the 200 highest-selling albums and was among the years five top-
selling albums by June 2012. It was certified Platinum (1,000,000 copies) in the U.S. and
Ireland, and certified Gold (500,000 copies) in the UK, Australia and Canada. The band and
the First LP were also nominated for several major music industry awards, including Grammy
Awards for Best New Artist and Best Americana Album and Billboards Awards for Top
New Artist and Top Rock Artist.
51. The First LP comprises eleven tracks, four of which are among the nine co-authored
Compositions identified in Paragraph 24 above:
a) Flowers In Your Hair
b) Classy Girls
c) Submarines
d) Morning Song
52. Upon information and belief, on or August 20, 2013, the Lumineers released a deluxe
edition of the First LP, which is supplemented with additional bonus recordings, including the
work, Darlene a co-authored Composition.
[14]
53. Upon information and belief, the recording Classy Girls B version has been
commercially released by Schultz and Fraites in various foreign territories, and includes certain
of Van Dykes Recorded Performances without Van Dykes authorization, and without payment
or any attribution to Van Dyke.
54. Schultz and Fraites have also released a recording entitled the Winter EP, which
contains the co-authored Composition Darlene. Dualtone now lists the Winter EP on its
website as Sold Out.
M. Fraudulent Trademark Registration
55. On or about February 18, 2013, Schultz and Fraites, directly or through their business
representatives, registered the mark The Lumineers for several classes with the United States
Patent & Trademark Office. The trademark registrations by Schultz and Fraites claimed first use
the name and mark The Lumineers as early as July 2009, i.e., during the period of Van Dykes
regular participation in the bands activities, and his acknowledged partnership ownership of
band assets. However, Schultz and Fraites failed to identify Van Dyke as a co-owner of the
mark, instead claiming ownership by an entity identified as The Lumineers, LLC, which did
not exist in July 2009.
56. Schultz and Fraites had appropriated the name Lumineers from a different band
scheduled to perform at the Lucky Seven nightclub in Jersey City, New Jersey. The club
emcee inadvertently introduced Van Dyke, Schultz and Fraites who were then using the name
Wesley Jeremiah as The Lumineers. Although members of the audience promptly pointed
out the mistake Schultz and Fraites, who had been joined by Van Dyke, elected to adopt The
Lumineers as the bands new name.
57. Schultz and Fraites did not consult with or notify Van Dyke that the mark The
Lumineers was being registered by the LLC they had established in Denver, i.e., The
Lumineers, LLC. Van Dyke was neither advised that his New Jersey partnership assets had
been converted and granted to LLC, nor was Van Dyke afforded any ownership, equity or
financial interest in either LLC or the mark The Lumineers.
[15]
58. Schultz and Fraites have vigorously pursued exploitation of the name and mark The
Lumineers on a broad spectrum of merchandise from an array of stylized t-shirts to liquid
containers and hoodees, all of which continues to be sold to fans and consumers at the bands
shows, on its website and elsewhere. Schultz and Fraites and their record company affiliate,
Dualtone, have also bundled such merchandise with the bands recordings for sale to the general
public.
59. Van Dyke has received no partner accounting for the income Schultz and Fraites have
derived from exploitation of merchandise bearing the mark The Lumineers.
N. False Publicity Materials Disseminated by Defendants
60. In biographic and publicity materials that routinely accompany the numerous record
releases of Schultz and Fraitess current band, Van Dyke has been ostracized and rendered
invisible through a false narrative. Schultz and Fraites promote false claims that they
developed the band and its original material in Denver, with no mention whatsoever of Van
Dykes significant involvement in developing the band and the Compositions.
O. Scotland used as the theme song of the Television Show Reign
61. In September 2013, the co-authored Composition entitled Scotland which had
been included on the bands First EP was employed as the theme song of a pilot television
show entitled Reign broadcast by defendant CW on its television network.
62. Upon information and belief, Schultz and Fraites developed a business relationship
with CW when one of their other works was utilized in a prior television show on CW.
63. According to published reports, in December 2011 CW included the bands song Ho
Hey in the season finale of CW's program Hart of Dixie. A national buzz erupted on social
media, and eventually that momentum, coupled with repeated back-to-back air play on Seattle
radio station KEXP-FM, led to the launch of The Lumineers double platinum single Ho Hey,
which became the first single from The Lumineers First LP.
64. Scotland has been continuously used as the theme for Reign since it began to run
on the CW network. Although Scotland was falsely publicized as a musical work created
[16]
exclusively for the television show, the song had in fact been co-authored by Van Dyke and
recorded by the band in 2009.
65. Through his own investigation and research, Van Dyke discovered that the
Composition and his Recorded Performance of Scotland was to be the theme song for CWs
show Reign.
P. Attempted Partial Buy-out of Van Dykes Master Ownership Rights
66. Schultz and Fraites had concealed from Van Dyke both their ongoing relationship
with CW and the selection of Scotland as the theme for Reign. Van Dyke was merely
informed the song Scotland was being considered for a pilot, and on or about May 15, 2013,
Van Dyke was contacted by a management representative of Schultz and Fraites, Ian Imhof.
Imhof requested Van Dyke to sign what he described as standard paperwork prepared by the
bands lawyer. The proposed agreement called for Van Dyke to convey his co-ownership rights
in the master recording of Scotland for $750.00 so it could be incorporated in the pilot.
Several days later, Christen Greene (Greene), another management representative from Onto
Entertainment in Seattle, informed Van Dyke on behalf of Schultz and Fraites that the recording
of Scotland to be used in the show was the one using Van Dykes performance. Also, in May
2013, Fraites confirmed to Van Dyke that his recorded performance was included on the
Scotland recording previously delivered to CW and that the television show would soon air.
By late May 2013 representatives for Shultz and Fraites increased the master buy-out offer to
$1,500.00.
67. Van Dyke was also advised by the management representatives that the musical work
Scotland was to be registered by Schultz and Fraites at Broadcast Music, Inc. (BMI) in the
names of Van Dyke, Schultz and Fraites, and therefore Schultz and Fraites needed Van Dykes
current address and the name of the performing rights organization with which Van Dyke was
affiliated. Van Dyke supplied his mailing address and subsequently received a proposed
agreement denominated a Side Artist Agreement.
[17]
68. Although Van Dyke had not agreed to any reduction in the full one-third interest in
Compositions he co-authored and recorded with the band, Greene advised Van Dyke he would
retain only a ten percent (10%) co-ownership share of the copyright to the underlying musical
Composition. The musical work Scotland has been embodied in the CW show Reign as its
theme song without Van Dykes approval or inclusion in the deal-making process with CW.
69. Schultz and Fraites also failed to include Van Dykes name in their registration of
Scotland at SoundExchange in Washington, D.C. a performance rights organization that
collects royalties for featured performers and owners of copyrights in sound recordings from the
streaming of musical content by Internet webcasters and non-interactive digital transmissions via
satellite, mobile radio and Internet radio. Van Dykes name has been wrongfully omitted from
SoundExchange registrations of all of the Compositions and Recorded Performances. Upon
submitting notice of Van Dykes Recorded Performances on Scotland, Gun Song and other
recordings made by Van Dyke with Schultz and Fraites, SoundExchange elected to freeze all
royalty payments otherwise payable to Van Dyke, Schultz and Fraites until the parties formally
resolve their conflicting claims.
70. When Scotland first aired on the CW television show Reign, the screen credits
stated Scotland was Written by Jeremy Fraites & Wesley Schultz and Performed by the
Lumineers. Through counsel, Van Dyke notified Schultz and Fraites that his name had been
wrongfully omitted from the shows screen credits. Although counsel for Schultz and Fraites
responded that he would bring the matter to the attention of management, Van Dykes name was
repeatedly omitted from all following episodes and airings of Reign. Eventually Reign was
designated as a new hit show and has been broadcast in various foreign territories.
71. When the initial communications between counsel failed to result in correction of the
screen credits, Van Dyke served a Cease and Desist notice on Schultz and Fraites, claiming
that damages were accruing to Van Dyke due to their failure to cause a proper name credit to be
afforded to Van Dyke on the theme song Scotland.
[18]
72. Upon information and belief, after CW learned of Van Dykes claim, it changed the
credit on the theme song Scotland from Written by Jeremy Fraites & Wesley Schultz,
Performed by the Lumineers to the more generalized credit, Scotland, by The Lumineers,
willfully depriving Van Dyke of the screen credit accorded considerable value and importance
in the entertainment industry.
Q. Defendants Failure to Provide a Certified Valuation of Partnership Assets
To Van Dyke
73. When Van Dykes several grievances and claims against Schultz and Fraites were
communicated to their counsel, Van Dykes counsel was promised a certified valuation of
partnership assets as a starting point for a possible settlement of all of Van Dykes claims.
However, after several weeks of delay in providing such a certified valuation, Schultz and Fraites
reneged on their promise to proffer it, and abruptly referred the matter to their litigation counsel,
who rejected all of Van Dykes claims.

FIRST COUNT
(Declaratory Judgment that Van Dyke is a Co-Author of the Compositions)
74. Van Dyke repeats and realleges the allegations set forth in paragraphs 1 through 73
as if fully set forth herein.
75. Van Dyke contends that he is an equal co-author of the Compositions.
76. Upon information and belief, Defendants Schultz and Fraites contend Van Dyke is
not a co-author of the Compositions.
77. By reason of the foregoing, there is a justiciable controversy between Van Dyke and
Defendants Schultz and Fraites.
78. Van Dyke is entitled to a declaration that he is a co-author of the Compositions.
79. Van Dyke has no adequate remedy at law.

[19]
SECOND COUNT
(Accounting of Co-Ownership Income)
80. Van Dyke repeats and realleges the allegations contained in paragraphs 1 through 79
above as if set forth herein at length.
81. Upon information and belief, Defendants Schultz and Fraites have received monies
from the exploitation of the Compositions co-authored by Van Dyke and have failed to properly
account to Van Dyke, a joint owner, or pay any royalties whatsoever to Van Dyke.
82. By reason of the foregoing, Van Dyke is entitled to an accounting of all monies
received by Defendants Schultz and Fraites from the exploitation of the Compositions, which,
upon information and belief, would entitle Van Dyke to monies over one million ($1,000,000)
dollars.

THIRD COUNT
(Accounting of Recording Income)
85. Upon information and belief, Defendants Schultz and Fraites have received monies
from the exploitation of Van Dykes Recorded Performances and have failed to properly account
to Van Dyke or pay any royalties whatsoever to Van Dyke.
86. By reason of the foregoing, Van Dyke is entitled to an accounting of all monies
received by Defendants Schultz and Fraites from the exploitation of Van Dykes Recorded
Performances, which, upon information and belief, would entitle Van Dyke to monies over one
million ($1,000,000) dollars.
FOURTH COUNT
(Conversion of Partnership Assets)
[20]
89. Schultz and Fraites have wrongfully converted assets of the partnership entered into
by and among Van Dyke, Schultz and Fraites, including but not limited to the master recordings
of the Compositions and the Recorded Performances, by willfully depriving Van Dyke of access
to the assets and exercising dominion over the assets and other partnership property inconsistent
with Van Dykes rights as a partner, and his rights in the management and conduct of the
partnership business.
90. Van Dyke is entitled to damages representing his share of the partnership assets and
property, to punitive damages, and to the creation of a constructive trust to hold the assets.
FIFTH COUNT
(Misappropriation of Partnership Assets)
92. Schultz and Fraites have wrongfully misappropriated assets and property of the
partnership entered into among Van Dyke, Schultz and Fraites, including but not limited to the
master recordings of the Compositions and the Recorded Performances, and the earnings,
royalties and other proceeds from exploitation of the Lumineers trademarks and the joint-
authorship copyright interests in the Compositions and the Recorded Performances by willfully
depriving and withholding Van Dykes share of partnership assets and property in derogation
Van Dykes rights as a partner and his rights in the management and conduct of the partnership
business.
93. Van Dyke is entitled to damages representing his share of the partnership assets and
property, to punitive damages, and to the creation of a constructive trust to hold the assets.
SIXTH COUNT
(Breach of Fiduciary Duty)
95. By their conduct set forth above, Schultz and Fraites have breached the duty of loyalty
they owe to Van Dyke as a partner in the partnership.
[21]
96. Van Dyke is entitled to damages proximately caused by Schultz and Fraitess
breaches of duty.
SEVENTH COUNT
(Breach of Express Contract)
98. Schultz and Fraites made contractual promises to Van Dyke concerning the formation
and ownership of a partnership among them, and ownership of copyright interests in the
Compositions and Recorded Performances. Van Dyke contributed money, time, services and
intellectual property in consideration of the promises made by Schultz and Fraites, and fully
performed under the contract.
99. Schultz and Fraites breached the contract by failing to perform their contractual
promises.
100. Van Dyke is entitled to damages proximately caused by Schultz and Fraitess
breaches of contract, and to specific performance of the contract.

EIGHTH COUNT
(Breach of Implied Contract)
102. Schultz and Fraites invited Van Dyke to join the band originally known as 6 Cheek,
to co-author the Compositions, to perform the Recorded Performances, and to otherwise
participate and assist in band activities and development of the bands reputation and financial
prospects.
103. Van Dyke performed all of the services requested of him, with the reasonable
expectation of compensation for those services. The parties cooperated together for more than a
year in a manner consistent with the explicit and implicit understandings among them, creating
an implied contract by their conduct.
[22]
104. Van Dyke has received no compensation for the services he performed under his
implied contract with Schultz and Fraites.
105. Van Dyke is entitled to restitution for the value of the services he performed.

NINTH COUNT
(Promissory Estoppel)
107. Schultz and Fraites made clear and definite promises to Van Dyke with a reasonable
expectation that Van Dyke would rely on those promises.
108. Van Dyke reasonably relied on the promises made to him by Schultz and Fraites to
his substantial detriment.
109. Van Dyke is entitled to damages proximately caused by breaches of promises by
Schultz and Fraites.
TENTH COUNT
(Unjust Enrichment)
111. Van Dyke conferred significant benefits to Schultz and Fraites in connection with
inter alia management of the partnership and development of partnership property, and creation
of the Compositions and Recorded Performances. Van Dyke reasonably expected to be
compensated for the services he performed and the benefits he conferred. Van Dyke has received
no compensation in return for those services and benefits, and Schultz and Fraites have been
unjustly enriched.
112. Van Dyke is entitled to an award in quantum meruit for the services he performed
and the benefits he conferred on Schultz and Fraites.

[23]
REQUEST FOR RELIEF
WHEREFORE, Plaintiff demands judgment:
(a) On the First Count, an Order declaring that Plaintiff is a co-
author of the Compositions;
(b) On the Second and Third Counts, an Order directing Defendants to
account to Plaintiff for all sums received by Defendants from the exploitation of the
Compositions and the Recorded Performances, and to pay over to Plaintiff his
proportionate share of such monies, with interest thereon;
(c) On the Fourth and Fifth Counts, an award of damages for
Plaintiffs share of partnership assets and property, punitive damages, and creation of
a constructive trust over the partnerships property and assets;
(d) On the Sixth Count, an award of damages proximately caused by
Defendants breaches of fiduciary duty;
(e) On the Seventh Count, an award of damages proximately caused
by Defendants breaches of contract, and an order directing specific performance of the
contract;

(f) On the Eighth Count, restitution for the services Plaintiff
performed;
(g) On the Ninth Count, an award of damages proximately caused
by Defendants breaches of promises;
(h) On the Tenth Count, an award in quantum meruit for the services
Plaintiff performed and the benefits he conferred on Defendants;
(i) An award to Plaintiff of the costs and disbursements
incurred in this action, including reasonable attorneys' fees; and
(j) Such other and further relief as the Court deems just and proper.
[24]

Dated: May 22, 2014 CLARK GULDIN, LLC

By: _/s/ Peter L. Skolnik________
Peter L. Skolnik (PS 4876)
Of Counsel
20 Church Street, Suite 15
Montclair, New Jersey 07042
(973) 707-5346
Attorneys for Plaintiff
Jason Van Dyke

JURY DEMAND
Plaintiff Jason Van Dyke hereby demands a jury trial on all issues so triable.
DESIGNATION OF TRIAL COUNSEL
Peter L. Skolnik is hereby designated as trial counsel.
CLARK GULDIN, LLC
By: /s/ Peter L. Skolnik
Peter L. Skolnik
DATED: May 22, 2014
CERTIFICATION PURSUANT TO R.4:5-1
The undersigned hereby certifies upon information and belief that the within
matter is not directly and/or factually related to any other litigation or arbitration between
the parties, and no other action or arbitration is contemplated.
CLARK GULDIN, LLC
By: /s/ Peter L. Skolnik
Peter L. Skolnik
DATED: May 22, 2014

Van Dyke Complaint Filed

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[1]

Peter L. Skolnik, Esq.

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