Opinion
CIVIL ACTION NO. 00-CV-12458-GAO.
January 29, 2002
MEMORANDUM AND ORDER
The plaintiffs, Broadcast Music, Inc. and several corporations and artists, (collectively "BMI") assert twelve claims of copyright infringement against the defendants, Old Colonial Corporation, d/b/a Bell in Hand Tavern, and Bryna Kaplan. The claims are based on unauthorized public performances of musical compositions for which BMI is the exclusive licensor at the Bell in Hand Tavern in Boston. The plaintiffs move for summary judgment, and after consideration, their motion is now GRANTED.
Standard of Review
Summary judgment is an appropriate disposition of a case "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if its resolution would "affect the outcome of the suit under the governing law," and a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Background
The plaintiffs allege that twelve incidents of copyright infringement occurred at the Bell in Hand Tavern on July 26 and 27, 2000. Well prior to those incidents, on November 18, 1998, BMI had informed the Bell in Hand Tavern by letter that offering musical entertainment without a license and without permission from the copyright owners whose music was being publicly performed was prohibited by law. BMI attached an information brochure and a BMI license agreement to the letter. BMI received no response to its letter. Stevens Aff. ¶ 3. BMI sent similar letters on January 28, 1999, September 13, 1999, November 9, 1999, December 7, 1999, January 10, 2000, February 28, 2000, March 17, 2000, and April 3, 2000. Again, BMI received no response from the defendants. Stevens Aff. ¶ 4. The plaintiffs also made several telephone calls to the defendants, and a BMI representative met personally with Bryna Kaplan on December 7, 1999. Stevens Aff. ¶ 7. On April 24, 2000, BMI sent the defendants a letter instructing them to cease and desist public performances of BMI-licensed music. Stevens Aff. ¶ 5. The defendants never entered into a licensing agreement with BMI. Stevens Aff. ¶ 8. On July 26 and 27, 2000, an employee of BMI visited the Bell in Hand Tavern and made a detailed report of the songs performed by the bands. The report documents the twelve alleged incidents of copyright infringement that form the basis of the complaint. Stevens Aff. Ex. A.
On July 26, 2000, a BMI investigator reported that the band Funky Monkey performed six musical compositions, for which BMI is the exclusive licensor of the public performance rights: (1) "Amie;" (2) "Brown Eyed Girl;" (3) "Cecilia;" (4) "Margaritaville;" (5) "Me and Julio Down By the Schoolyard;" and (6) "Under the Bridge." On July 27, 2000, the BMI investigator reported that the band For Pete's Sake performed six musical compositions, for which BMI is the exclusive licensor of the public performance rights: (1) "Daydream Believer;" (2) "Johnny B. Goode;" (3) "Piano Man;" (4) "Squeeze Box;" (5) "Every Rose Has Its Thorn;" and (6) "Shimmer." See Stevens Aff. Ex. A; Berenson Aff. ¶ 4, 6.
The defendants filed an answer to the complaint on January 2, 2001. On March 23, 2001, the parties filed a joint statement pursuant to Local Rule 16.1(d), but the defendants have not made any submissions to the Court since that date. The plaintiffs allege that the defendants have not responded to any of the discovery requests served upon them. The defendants have had ample opportunity to oppose the plaintiffs' motion for summary judgment but have not done so. Consequently, there is no contradiction in the record concerning the plaintiffs' version of the facts. After review, the Court concludes that the motion is meritorious.
At a status conference before the Court on December 10, 2001, the defendants' counsel, James Cipoletta, moved to withdraw his appearance in this case because of "a total breakdown in communications between counsel and the defendants." He stated that despite his best efforts, he was unable to obtain his clients' cooperation in preparing an opposition to the plaintiffs' motion for summary judgment. The Court denied the motion to withdraw.
Discussion
Pursuant to the Copyright Act, the owner of a copyright has the exclusive right to perform, or authorize others to perform, the copyrighted work. See 17 U.S.C. § 106(4). A person who violates this exclusive right is an infringer. See 17 U.S.C. § 501(a). The defendants are vicariously liable for infringements committed by bands hired by them to perform at the Bell in Hand Tavern. The cast of the vicarious liability net is wide, for "even in the absence of an employer-employee relationship one may be vicariously liable if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities." Gershwin Publ'g Corp. v. Columbia Artists Mgmt., 443 F.2d 1159, 1162 (2d Cir. 1971). The First Circuit has also rejected the theory that a proprietor of a public establishment is not liable for the infringing performances of independent contractors in its establishment because "otherwise [the proprietor would] reap the benefits of countless violations by [performers] . . . by merely claiming ignorance that any violation would take place." Famous Music Corp. v. Bay State Harness Horse Racing and Breeding Ass'n., 554 F.2d 1213, 1215 (1st Cir. 1977).
Under the statute, the plaintiffs are entitled to recover "not less than $750 or more than $30,000" per infringement. 17 U.S.C. § 504(c)(1). Furthermore, if "the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." 17 U.S.C. § 504(c)(2).
The plaintiffs' request for $2,220.00 for each of the twelve copyright infringements is granted, entitling the plaintiffs to $26,640.00 in statutory damages. This award is especially reasonable in light of the persistent efforts made by the plaintiffs over an extended period of time to obtain the defendants' compliance. The plaintiffs are also awarded $6,680.90 in attorney's fees and costs pursuant to 17 U.S.C. § 505.See Strong Aff. ¶ 7. The Court finds that this amount is reasonable in light of the plaintiffs' efforts and the statutory award of $26,640.00. Finally, the plaintiffs' request for injunctive relief is granted. The defendants, Old Colonial Corporation and Bryna Kaplan, and their agents, servants, and employees, and all persons acting under their permission or authority shall be permanently enjoined and restrained from infringing in any manner each and all of the copyrighted musical compositions licensed by BMI.
Conclusion
For the foregoing reasons, the plaintiffs' motion for summary judgment is GRANTED. Accordingly, judgment shall be entered for the plaintiffs for (1) $26,640.00 in statutory damages under 17 U.S.C. § 504(c)(1), (2) $6,680.90 in attorney's fees and costs pursuant to 17 U.S.C. § 505, and (3) an injunction enjoining the defendants, Old Colonial Corporation and Bryna Kaplan, and their agents, servants, and employees and all persons acting under their permission or authority from infringing in any manner each and all of the copyrighted musical compositions licensed by BMI.
IT IS SO ORDERED.