From: Courtney Dillaplain [courtney@dillaplain.com]
Sent: Thursday, August 31, 2006 9:20 PM
Cc: Owen Sloane [osloane@bergerkahn.com}; Gail Zappa [gail@zappa.com]
Subject: Cease and desist

August 31, 2006



Re: The Zappa Family Trust / Infringement
Our File No.: 18448

Dear Mr. Healy:

We represent The Zappa Family Trust. This letter is regarding the
unauthorized use of numerous Frank Zappa works on your website located at mywebpages.comcast.net/umrk.

The Zappa Family Trust is the owner of all right, title and interest, including without limitation the copyright therein, in and to many, if not all, of the musical compositions available for streaming via your website.
As the owner of all right, title and interest therein, The Zappa Family Trust has the exclusive right to perform such musical compositions, digitally or otherwise, and you are required to obtain a performance license from the proper performing rights society in order to stream these
compositions from your site. Although we understand you may have attempted
to obtain a license for performance of the musical compositions and sound recordings through Live 365.com, your site does not comply with the Digital Millenium Copyright Act and therefore, your performance of the musical compositions and sound recordings is illegal.

Your site allows the interactive, ³on demand,² streaming of sound recordings, including entire albums, owned by our client, Rykodisc, and
other third parties. The owner of the sound recording has the exclusive
right to digitally perform such sound recordings. Since ³on demand² streaming is excluded from the statutory license pursuant to section 114 of the Copyright Act, in order to digitally perform such sound recordings, you are required to obtain a voluntary license from the copyright owner. You have failed to obtain any such voluntary licenses from The Zappa Family
Trust.

Additionally, the streaming of these musical compositions and sound recordings may also constitute ³copies² for which you must obtain separate
and additional licenses from the owner. No such licenses were sought or
obtained.

The Zappa Family Trust also owns the photographs and artwork embodied on the Frank Zappa album covers, and pursuant to the Copyright Act, has the exclusive right to display such photographs and artwork. Again, you have failed to obtain permission from our client, or accord proper credit to our client, with respect to the display of such artwork and photographs on your site. Furthermore, your unauthorized use of Frank Zappaıs image may also violate our clientıs right of publicity under California law.

Further, your use of ZAPPA, FRANK ZAPPA and FZ (the ZAPPA Marks) on your website infringe upon our clientıs federally registered marks as follows:


MARK REGISTRATION NO.
FZ 2,175,923
FZ 2,133,662
FRANK ZAPPA 1,847,913
ZAPPA 1,843,244
FRANK ZAPPA 1,840,371
ZAPPA 1,840,370
ZAPPA 1,179,890

In addition, your entire website as presented, including use of the ZAPPA Marks, Frank Zappaıs image and the linkage to the official www.zappa.com website, are violations of Section 43(a) of the Lanham Act (15 U.S.C. Section 1125(a)). Your use of the ZAPPA Marks and the Zappa domain name is likely to deceive the public to believe that you have been authorized by The Zappa Family Trust to operate this website and/or to engage in the streaming activities provided. Also, such activities collectively imply some affiliation, connection or association with our client, which, as you know, is patently false and misleading.

Accordingly, your unauthorized use of Frank Zappaıs musical compositions, sound recordings, photographs, artwork, name and likeness, ZAPPA Marks and domicile name owned by The Zappa Family Trust violates our clientıs rights and constitutes, without limitation, copyright infringement and a violation of section 43(a) of Lanham Act.

We are hereby formally advising you that you must immediately disable the above-referenced website and cease and desist any and all further unauthorized use of the materials referenced herein or any materials owned by The Zappa Family Trust. Our client will consider every available remedy including injunctions and recovery of attorneyıs fees, costs and any and all other damages which are incurred by our client as a result of any action that is commenced against you.

Please advise us in writing of your intent to fully comply with the requests herein within seven (7) days from the date of this letter.

Nothing contained in or omitted from this letter is, or shall be deemed to be, either a full statement of the facts or applicable law, an admission of any fact, or a waiver or limitation of any of our clientıs rights or remedies, all of which are specifically retained and reserved.


Sincerely,


OWEN J. SLOANE
Partner


cc: Gail Zappa (via e-mail)
Live365 (via fax)
Federal Bureau of Investigation (via US mail)