Opinion
Civil Action No. 05-3562.
January 27, 2006
ORDER
AND NOW, this 27th day of January, 2006, upon consideration of this Court's grant of summary judgment on liability in favor of plaintiffs on January 5, 2006 in this copyright enforcement action, and in accordance with 17 U.S.C. § 504 the Court having on January 25, 2006 convened a hearing to determine the appropriate damages and other relief that should be awarded as a result of the infringement defendants made on plaintiffs' copyrighted songs, and the Court making the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a):
(a) The primary question before the Court is whether defendants' infringement of plaintiffs' copyrights were "willful" within the meaning of 17 U.S.C. § 504(c)(2), see also Williams Elec., Inc. v. Arctic Int'l, Inc., 685 F.2d 870, 878 (3d Cir. 1982);
(b) Under the statute, the question becomes whether defendants were "not aware and had no reason to believe that [their] . . . acts constituted an infringement of copyright," 17 U.S.C. § 504(c)(2);
(c) There is little question on this record that defendants had ample reason to believe they were infringing plaintiffs' copyrights;
(d) Indeed, as demonstrated by plaintiffs' Exhibits 2, 3, and 4, International Food on March 15, 1995 entered into a licensing contract with plaintiffs' agent, the American Society of Composers, Authors and Publishers ("ASCAP");
Defendant Vidi himself signed this International Food check in favor of "A.S.C.A.P.", which is plaintiffs' agent. This annual license fee was for $460.80.
(e) Although defendants neglected to pay the annual renewals on the original ASCAP license, the record also demonstrates that ASCAP on many occasions reminded defendants of their duty under the copyright law to plaintiffs and other ASCAP members and sought amicably to resolve defendants' flagrant violations of the Copyright Act of 1976, as witness plaintiffs' Exhibits P-5 through P-12;
(f) There is no doubt, on this record, that defendants' violations were willful and knowing and not, in the slightest way, innocent and accidental;
A measure of how flagrant defendants' violations are — and of how utterly incredible defendant Vidi's testimony was — is defendants' ignoring of this Court's January 5, 2006 injunction ten days after it was issued. Vidi would have us believe that, yes, he knew we had granted summary judgment against him for copyright violations, but, no, he didn't know anything about an injunction. As we mentioned to Vidi and his counsel at the close of the hearing on January 25, he and his firm must take a federal court's injunction seriously or face harsh consequences for not doing so.
(g) Balancing the strong public interest in ensuring the integrity of the copyright laws, and the flagrant nature of the infringement shown here, balanced against plaintiffs' loss of approximately $12,000 (including interest) to date in lost license fees to which they were entitled, plaintiffs' request of statutory damages of $4,500 per song, or a total of $31,500, is eminently reasonable;
(h) Turning to the question of attorney's fees and costs under 17 U.S.C. § 505, see also Lieb v. Topstone Indus., 788 F.2d 151 (3d Cir. 1986), plaintiffs have sought $20,810.77 in fees and litigation costs as well as related enforcement costs in the amount of $636.20;
(i) The $636.20 for the investigators' expense is entirely reasonable as are the $2,122.52 in out-of-pocket expenses plaintiffs' counsel have incurr ed and detailed, and thus the total expenses of $2,758.72 will be awarded plaintiffs and against defendants;
(j) Plaintiffs also seek reimbursement of $18,165 in attorney's fees;
(k) Although there is no question that plaintiffs are prevailing parties here, and have achieved complete success against an obdurate and, indeed, frivolous defense, and though the hourly rates and number of billed hours are reasonable as measured by prevailing legal community standards in the Philadelphia area, under all the circumstances a fee of half of the amount sought is reasonable here given the magnitude of the statutory damages imposed and further tempered by the relatively modest size of defendants' operation of the subject restaurant in Philadelphia, see Lieb, 788 F.3d at 156;
In what has to be one of the more preposterous defenses this Court has seen articulated with straight faces, defendants here actually claim that ASCAP, as plaintiffs' licensing agent, must, as a condition precedent to the copyright's enforceability, comply with the local business privilege rules of any municipality where it seeks to enforce a copyright. Thus, here the admitted "failure" of ASCAP to pay the Philadelphia Business Privilege tax is proffered to trump the federal Copyright Act as "the supreme Law of the Land," U.S. Const. art. VI, 2, but also to defeat the exclusive jurisdiction of the federal courts to enforce those constitutionally-rooted laws. See 28 U.S.C. § 1338(a) (federal court jurisdiction over patents and copyrights "shall be exclusive of the states") and U.S. Const. art. I, § 8, cl. 8 (Congress granted the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"). Defendants' contentions, besides being conjured at the eleventh hour, are so far-fetched that they negate any possible good faith defense to either statutory damages or the award of fees and costs.
(1) We shall, therefore, award fees of $9,082.50 in addition to the costs previously mentioned, for a total of $11,841.22, and
it is hereby ORDERED that:
1. Plaintiffs' request for statutory damages is GRANTED in the amount of $31,500, and their request for counsel fees and costs is GRANTED IN PART, in the total amount of such fees and expenses of $11,841.22; and
2. The Court having on January 5, 2006 entered a permanent injunction, and final relief now having been given (with the accompanying Judgment), the Clerk shall CLOSE this matter statistically.
In view of this Order, the proceeding mentioned at the end of the January 25, 2006 hearing is now unnecessary, and is therefore CANCELLED.