Summary
awarding "the full amount of [Mr. Wassom's] costs and attorneys' fees incurred in this case, including costs and fees incurred subsequent to the filing of [his clients'] summary judgment motion"
Summary of this case from Chambers v. Ingram Book Co.Opinion
Case No. 2:05-CV-70326.
December 29, 2005
HONIGMAN MILLER SCHWARTZ AND COHN LLP, Herschel P. Fink, Brian D. Wassom, Detroit, MI, Attorneys for Plaintiffs.
HICKS, SCHMIDLIN SALIM, P.C., David A. Salim, Flint, MI, Attorneys for Defendants.
JUDGMENT
On October 10, 2005, Plaintiffs filed a motion for summary judgment on all counts of their Second Amended Complaint against all Defendants except Blue Line, Inc., which was dismissed by stipulated order on October 11, 2005. On December 8, 2005, the Court heard argument on Plaintiffs' motion.
Based on its consideration of the parties' written and oral arguments, the Court makes the following findings of fact:
1. Defendants include Greater Flint Pro Hockey, Inc. ("GFPH"), which owns and operates the Flint Generals; K.M.S. Properties, L.L.C. ("KMS"), which owns and operates the Perani's Hockey World Arena and Event Center ("Arena"), in Flint, Michigan; Sunshine Management, Inc. ("Sunshine"), which manages the Arena (collectively, the "Corporate Defendants"); and Dr. Khaled M. Shukairy, the sole owner and officer of each of the Corporate Defendants (collectively, "Defendants").
2. Defendants committed copyright infringement as defined by 17 U.S.C. §§ 101 et seq. by performing eight (8) of Plaintiffs' copyrighted musical compositions without permission during the October 16, 2004 Flint Generals hockey game at the Arena. Schedule A to the Second Amended Complaint sets forth the titles, writers, copyright proprietors, and copyright registration numbers for each of the eight songs in suit.
3. Plaintiffs own the copyrights in these musical compositions, and are members of the American Society of Composers, Authors and Publishers ("ASCAP"), to which they have granted a non-exclusive right to license non-dramatic public performances of their copyrighted musical compositions.
4. For the following reasons, the Court finds that Defendants were fully aware of their obligation to obtain permission to perform plaintiffs' songs, either by license from ASCAP or directly from ASCAP's members, and that the infringing performances were therefore knowing and willful:
a. Despite the numerous letters and personal contacts from representatives of ASCAP offering Defendants a license and informing them of their liability under the Copyright Act, Defendants rejected ASCAP's license offers and continued to perform copyrighted music without permission on a regular basis.
b. In 2000, Defendant Shukairy was sued by other ASCAP members for performing their songs without permission at the Flint Iceland Arenas, another business owned by Shukairy. Shukairy settled that lawsuit after seven months of pretrial litigation and discovery proceedings.
c. Defendants signed a license agreement with another performance rights society, BMI, informed ASCAP's representatives that they did not wish to sign an additional license, and affirmatively represented to ASCAP that Defendants would play only BMI-licensed music at Flint Generals games.
d. Defendants requested from ASCAP a list of the songs in ASCAP's repertory, thereby demonstrating awareness of the fact that ASCAP licenses the right to perform its members' copyrighted songs, and that Defendants might be performing some of those songs. In response, ASCAP advised Defendants as to how they might obtain information as to whether specific songs are in the ASCAP repertory; made available to Defendants a compact disc containing a searchable computer file listing ASCAP members and the titles of hundreds of thousands of ASCAP works; and informed Defendants that even more current information on the ASCAP repertory is available on the ASCAP Internet website. Defendants never availed themselves of the services offered by ASCAP and, instead, performed plaintiffs' songs as alleged in the complaint.
5. There is a substantial likelihood that Defendants will continue to infringe the copyrights in songs owned by ASCAP members unless this Court issues permanent injunctive relief.
6. Plaintiffs' requested award of statutory damages under 17 U.S.C. § 504(c) in the amount $5,000 per song, for a total of $40,000, is appropriate in this case.
7. Pursuant to 17 U.S.C. § 505, Plaintiffs are entitled to an award of the full amount of their costs and attorneys' fees incurred in this case, including costs and fees incurred subsequent to the filing of Plaintiffs' summary judgment motion. As Plaintiffs have demonstrated by way of affidavits, the total amount of those costs and fees is $31,052.50.
It is therefore ORDERED, ADJUDGED, AND DECREED:
1. Plaintiffs' motion for summary judgment is GRANTED in full.
2. Defendants Shukairy, GFPH, KMS, and Sunshine are hereby enjoined and restrained permanently from publicly performing any or all of Plaintiffs' copyrighted musical compositions and from causing or permitting Plaintiffs' copyrighted musical compositions to be publicly performed, and from aiding and abetting public performances of such compositions, unless the Defendants shall have previously obtained permission to give such performances, either directly from the Plaintiffs or their duly authorized agents, or by license from the American Society of Composers, Authors and Publishers ("ASCAP").
3. Judgment is hereby entered in favor of Plaintiffs and against Defendants, jointly and severally, in the sum of Seventy-One Thousand Fifty-Two and 50/100 dollars ($71,052.50), plus interest from the date this Judgment is entered, pursuant to 28 U.S.C. § 1961.
This is a final order and closes the case.