REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

7TH JUDICIAL REGION

BRANCH 10

CEBU CITY, PHILIPPINES

TAYLOR SWIFT

Plaintiff,

Civil Case No. 7049

-versus- FOR: ISSUANCE OF WRIT

OF PRELIMINARY INJUNTION
ITHACA HOLDING LLC

Defendant

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MEMORANDUM

For the Plaintiff

PLAINTIFF, through the undersigned counsel, unto this Honorable

Court, most respectfully submits this Memorandum and aver that:

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 I

STATEMENT OF THE CASE

Plaintiff Taylor Swift (hereinafter referred to as “Plaintiff”) filed the

present action for preliminary injunction against Defendant Ithaca
Holdings Incorporation (hereinafter referred to as ‘Defendant’),
enjoining the latter to allow the re-recording of the plaintiff’s songs.

ANTECEDENT FACTS

1. Plaintiff TAYLOR SWIFT, of legal age, single, and a Filipino

citizen, residing at 11th Flr., AppleOne-Equicom Tower,
Mindanao Ave., Cebu Business Park, 6000 Cebu City, is an
internationally renowned singer, songwriter, and music producer.
2. Defendant ITHACA HOLDINGS, is corporation duly organized,
registered and existing under and by virtue of the laws of the
Republic of the Philippines, with principal office or place of
business at Unit 404, 4th Flr., eBloc 2 Tower, W Geonzon St.,
Lahug, 6000 Cebu City, Philippines.
3. Plaintiff is under the music label Big Machine. When Plaintiff
signed to Big Machine, both parties agreed that all of her master
recordings (of her first six albums) would be owned by the label
for a certain period of time.
4. On 30 Jun 2019, all of the defendant's recorded music assets
were acquired by Big Machine Label Group for USD 300 million.
The deal includes all of the plaintiff's master recordings.
5. Ithaca Holdings LLC is represented by Scooter Braun, of legal
age, single, a Filipino Citizen, and defendant’s duly elected
President and legal representative.
6. Upon the expiration of plaintiff's label contract in 2018, she
negotiated to buy back all her master recordings. However, she
failed to acquire it.
7. Plaintiff has confirmed that the rights to her first six albums have
been sold by Scooter Braun to a private equity firm, without
offering it first to her. All her master recordings (alone) were sold
for USD 300 million.
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 III

STATEMENT OF THE ISSUES

A. Whether or not Taylor Swift is allowed to re-record all her songs

without violating the copyright laws
B. Whether or not Ithaca Holdings can prohibit Taylor Swift from
performing any songs

IV

ARGUMENTS AND DISCUSSIONS

A. Taylor Swift is allowed to re-record all her songs without

violating the law on copyright.

It is herein submitted that plaintiff is allowed by law to re-record all

songs from her previous six albums.

A person to be entitled to a copyright must be the original creator of

the work. He must have created it by his own skill, labor and judgment
without directly copying or evasively imitating the work of another (Ong
Ching Kian Chuan v. Court of Appeals, G.R. No. 130360, [August 15,
2001], 415 PHIL 365-375).

As the original composer and lyricist of the songs covered by a

copyright registration dated 07 December 2010 (Annex A), Taylor Swift
owns the musical composition copyright which finds a textual hook in
Section 172.1 (f) vis-a-vis Section 172.2 of Republic Act 8293, as
amended, otherwise known as the Intellectual Property Code of the
Philippines. It provides:

SEC. 172. Literary and Artistic Works. –

172.1 Literary and artistic works, hereinafter referred to as "works",

are original intellectual creations in the literary and artistic domain
protected from the moment of their creation and shall include in
particular:
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xxx

(f) Musical compositions, with or without words;

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172.2. Works are protected by the sole fact of their creation,
irrespective of their mode or form of expression, as well as of their
content, quality and purpose. (Sec. 2, P.D. No. 49a)

In congruence thereof, the author of the work is clothed under the law
with economic and moral rights. Section 177 and 193 of the Intellectual
Property Code, as amended, respectively reads:

SEC. 177. Copyright or Economic Rights. - Subject to the provisions

of Chapter VIII, copyright or economic rights shall consist of the
exclusive right to carry out, authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment,

arrangement or other transformation of the work;

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SEC. 193. Scope of Moral Rights. - The author of a work shall,

independently of the economic rights in Section 177 or the grant of an
assignment or license with respect to such right, have the right:

193.1. To require that the authorship of the works be attributed to him,

in particular, the right that his name, as far as practicable, be indicated
in a prominent way on the copies, and in connection with the public use
of his work;

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The aforementioned economic right encapsulated under Section 177

is further bolstered under Section 203.2 of the Intellectual Property
Code, as amended. To wit:

xxx
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203.2. The right of authorizing the direct or indirect reproduction of their
performances fixed in sound recordings or audiovisual works or
fixations in any manner or form;

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It bears to stress that the Philippines is a contracting party to the

International Convention for the Protection of Performers, Producers
of Phonograms and Broadcasting Organizations otherwise known as
the Rome Convention of 1961. Article 7 of the Rome Convention lays
down minimum protection accorded to performers:

Article 7

Minimum Protection for Performers: 1. Particular Rights; 2.

Relations between Performers and Broadcasting Organizations

1. The protection provided for performers by this Convention shall

include the possibility of preventing:

(a) the broadcasting and the communication to the public, without

their consent, of their performance, except where the
performance used in the broadcasting or the public
communication is itself already a broadcast performance or is
made from a fixation;
(b) the fixation, without their consent, of their unfixed performance;
(c) the reproduction, without their consent, of a fixation of their
performance: (i) if the original fixation itself was made without
their consent; (ii) if the reproduction is made for purposes
different from those for which the performers gave their consent;
(iii) if the original fixation was made in accordance with the
provisions of Article 15, and the reproduction is made for
purposes different from those referred to in those provisions.

In the case at bar, the plaintiff’s copyright protection relative to her

sound recordings subsist for fifty (50) years from the end of the year in
which the recording took place (Section 215.1 of the Intellectual
Property Code, as amended).

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Anent the issue regarding copyright infringement, it is likewise
submitted that plaintiff’s act of re-recording her songs will not constitute
the same.

Case law defines infringement as a trespass on a private domain

owned and occupied by the owner of the copyright| which consists in
the doing by any person, without the consent of the owner of the
copyright, of anything the sole right to do which is conferred by statute
on the owner of the copyright (Columbia Pictures, Inc. v. Court of
Appeals, G.R. No. 110318, [August 28, 1996], 329 PHIL 875-932).
Section 216 of the Intellectual Property Code, as amended, instructs
that to constitute copyright infringement, the following conditions sine
qua non must be present: any person (i) directly commits an
infringement; (b) benefits from the infringing activity of another person
who commits an infringement if the person benefiting has been given
notice of the infringing activity and has the right and ability to control
the activities of the other person; (c) with knowledge of infringing
activity, induces, causes or materially contributes to the infringing
conduct of another. The Supreme Court in the case of Habana v.
Robles, G.R. No. 131522, [July 19, 1999], 369 PHIL 764-798 ruled that
in cases of infringement, the mere act of copying is not prohibited for
what the law proscribes is the act copying that produces an injurious
effect. It follows that in cases of invasion of one’s property rights, a
copyright owner is naturally entitled to seek redress, enforce and hold
accountable the defrauder or usurper of said economic rights (Habana
v. Robles, G.R. No. 131522, [July 19, 1999], 369 PHIL 764-798)

Henceforth, since plaintiff is the composer and author of the lyrics, it

cannot be said to have infringed the copyright provided that she owns
the musical composition copyright attached to said songs.

B. Ithaca Holdings cannot prohibit Taylor Swift from performing

any songs.

Licensee, not Assignee

Section180.2 of the Intellectual Property Code of the Philippines states

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that, “the copyright is not deemed assigned or licensed inter vivos, in
whole or in part, unless there is a written indication of such intention.”

It is hereby submitted that what was transferred by Plaintiff to

Defendant was the right of a licensee, and not that of an assignee.

In assignment, there is already a transfer of ownership of the copyright.

Hence, the right belongs exclusively to the assignee. On the other
hand, when what is given is the right of assignment, there is no transfer
of ownership since what is given is a mere authority. Ownership of the
right is still retained by the licensor, and the licensee is only authorized
to perform specific economic rights.

It is herein manifested that there was never an intention to transfer

ownership of such rights as evidenced by the inclusion of a restrictive
clause wherein Plaintiff limited such rights for a certain period of time
only.

Where ownership was not transferred, Ithaca Holdings never had the
right to prohibit Taylor Swift from performing any songs.

The Contract was Novated

Novation is a mode of extinguishing an obligation by changing its

objects or principal obligations, by substituting a new debtor in place of
the old one, or by subrogating a third person to the rights of the creditor.

The subrogation by a third person in the rights of the creditor finds its
root in Article 1203 of the Civil Code which states:

“If through the creditor’s act the debtor cannot make a choice according
to the terms of the obligation, the latter may rescind the contract with
damages.”

Evident from the facts presented, Taylor Swift had a contract with Big
Machine and gave them the authority over all of her master recordings.
Ithaca Holdings, not being a party to the contract, acquired Big
Machine Group and all of its recorded music assets which includes all
of Taylor’s master recordings. It can be therefore said that Ithaca
Holdings subrogated the rights of Big Machine. Moreover, the rights to
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her first six albums were sold by Scooter Braun to a private equity firm,
without offering it first to her.In so doing, Article 1203 of the Civil Code
finds application.

With the novation of the contract, and with Ithaca Holdings not being a
party thereof, it cannot likewise prohibit Taylor Swift from performing
any songs.

V.

Respective rights and obligations of the following:

a. Ithaca towards Taylor Swift.

b. Taylor Swift towards Ithaca.

a.) Section 208 of the Intellectual Property Law (R.A. 8293, as

amended) grants the producers of sound recordings the enjoyment of
the following exclusive rights:
SEC. 208. Scope of Right. -Subject to the provisions of
Section 212, producers of sound recordings shall enjoy
the following exclusive rights:

208.1. The right to authorize the direct or indirect

reproduction of their sound recordings, in any manner or
form; the placing of these reproductions in the market and
the right of rental or lending;

208.2. The right to authorize the first public distribution of

the original and copies of their sound recordings through
sale or rental or other forms of transferring ownership; and

208.3. The right to authorize the commercial rental to the

public of the original and copies of their sound recordings,
even after distribution by them by or pursuant to
authorization by the producer.

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 208.4. The right to authorize the making available to the
public of their sound recordings in such a way that
members of the public may access the sound recording
from a place and at a time individually chosen or selected
by them, as well as other transmissions of a sound
recording with like effect.

When Ithaca Holdings acquired Big Machine Label Group, the latter
being the recording company who was given license to Taylor Swift’s
Master Recordings of her first six albums, Ithaca Holdings enjoys the
same exclusive rights accorded by law to producers of sound
recordings.

However, the exclusive rights accorded to Ithaca are limited only to the
sound recordings itself, the works that result from a fixation of a series
of musical, spoken, or other sounds, or the version of the songs that
are publicly released, and does not extend to the musical composition
that Taylor Swift herself exclusively owns. Neither can Ithaca forbid
Taylor Swift from re-recording her musical compositions since it is her
own intellectual creation and she solely owns it, to the exclusion of
Ithaca Holdings.

b.) Under Section 172 (f) of the Intellectual Property Law (R.A. 8293,
as amended), Musical Compositions are recognized as an original
intellectual creation in the literary and artistic domain and is afforded
protection:

SEC. 172. Literary and Artistic Works. - 172.1 Literary and

artistic works, hereinafter referred to as "works", are
original intellectual creations in the literary and artistic
domain protected from the moment of their creation and
shall include in particular:

(f) Musical compositions, with or without words;

Moreover, the ownership of such intellectual creation shall belong to

the author of the work:

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 SEC. 178.1. Subject to the provisions of this section, in the
case of original literary and artistic works, copyright
shall belong to the author of the work;

Likewise, the author of such work is entitled to the Economic and Moral
rights as stated under the code:

SEC. 177. Copyright or Economic Rights. -Subject to

the provisions of Chapter VIII, copyright or economic rights
shall consist of the exclusive right to carry out, authorize or
prevent the following acts:

177.1. Reproduction of the work or substantial portion of

the work;

177.2. Dramatization, translation, adaptation, abridgment,

arrangement or other transformation of the work;

177.3. The first public distribution of the original and each

copy of the work by sale or other forms of transfer of
ownership;

177.4. Rental of the original or a copy of an audiovisual or

cinematographic work, a work embodied in a sound
recording, a computer program, a compilation of data and
other materials or a musical work in graphic form,
irrespective of the ownership of the original or the copy
which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work.

SEC. 193. Scope of Moral Rights. -The author of a work

shall, independently of the economic rights in Section 177
or the grant of an assignment or license with respect to
such right, have the right:
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 193.1. To require that the authorship of the works be
attributed to him, in particular, the right that his name, as
far as practicable, be indicated in a prominent way on the
copies, and in connection with the public use of his work;

193.2. To make any alterations of his work prior to, or to

withhold it from publication;

193.3. To object to any distortion, mutilation or other

modification of, or other derogatory action in relation to, his
work which would be prejudicial to his honor or reputation;
and

193.4. To restrain the use of his name with respect to any

work not of his own creation or in a distorted version of his
work.

Taylor Swift does not dispute Ithaca’s copyright over her old songs. Big
Machine Label Group did and is now held by a private equity firm when
Ithaca’s president Scooter Braun sold it. They still enjoy the exclusive
rights accorded to them by law as producer of sound recordings, but
such right is limited only to the Master Recordings or the original
recorded version of the songs that are publicly released.

Ergo, Taylor Swift, being the author of the Musical Compositions, is the
sole owner of such intellectual creation and is entitled to the exclusive
rights and protection accorded to her as the author of such work.
Effectively, she owns the abstract version of the songs. She can take
the Musical Compositions that she wrote and re-record them without
infringing Ithaca’s copyright. Re-recording and re-releasing new
versions of her old songs does not get rid of the original Master
Recordings. However, Taylor Swift’s fans will most likely support her
version and stream the new recordings over the old ones, which in
effect will diminish the value of the Master Recordings now owned by
a private equity firm.

RELIEF

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WHEREFORE, premises considered, it is respectfully prayed unto this
Honorable Court that judgment be rendered in favor of the Plaintiff, as
follows:

a. Enjoining the Defendant from prohibiting Plaintiff from re-

recording all her songs;
b. Declaring the contract between Plaintiff and Big Machine to have
been extinguished by reason of novation; and
c. Declaring Plaintiff to have exclusive rights over all her songs
subject of this petition.

Other relief, just and equitable, are also prayed for.

Respectfully submitted. Cebu City, Philippines, October 14, 2022.

ATTY. FLOREN AGUSTIN CHAR G. MINDAÑA

Counsel for the Plaintff

Roll No. 82759
PTR No. 15105871, 1-08-11, Cebu City
IBP Lifetime No. 090547
MCLE Compliance No. III-0002533
SWIFTIE LAW OFFICE
200 Sanciangko Street, Brgy. Kalubihan, Cebu City

ATTY. EDISON B. CABUCOS

Counsel for the Plaintiff

Roll No. 82759
PTR No. 247989, 1-08-11, Cebu City
IBP Lifetime No. 090548
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 MCLE Compliance No. III-0002532
SWIFTIE LAW OFFICE
200 Sanciangko Street, Brgy. Kalubihan, Cebu City

ATTY. DAN LOUIE G. TORION

Counsel for the Plaintiff

Roll No. 82761
PTR No. 247990, 1-08-11, Cebu City
IBP Lifetime No. 090513
MCLE Compliance No. III-0002529
SWIFTIE LAW OFFICE
200 Sanciangko STreet, Brgy. Kalubihan, Cebu City

ATTY. JESSA FAITH C. BENAOJAN

Counsel for the Plaintiff

Roll No. 82760
PTR No. 247990, 1-08-11, Cebu City
IBP Lifetime No. 090549
MCLE Compliance No. III-0002530
SWIFTIE LAW OFFICE
200 Sanciangko STreet, Brgy. Kalubihan, Cebu City

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Copy furnished:

ATTY. KANYE WEST

Counsel for Defendant

4th Floor, 4H JL Miilennium,

Don Ayala Avila St., Capitol Site, 6000, Cebu City, Philippines

yelawoffices@gmail.com

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ANNEX A

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