5. That the performance was without the permission of the plaintiff.See, e.g., Hideout Records Distributors v. El Jay Dee, Inc., 601 F. Supp. 1048, 1052 (D.Del. 1984); Milene Music, Inc. v. Gotauco, 551 F. Supp. 1288, 1292 (D.R.I. 1982); Broadcast Music, Inc. v. Fox Amusement Co., Inc., 551 F. Supp. 104, 107 (N.D.Ill. 1982). To be entitled to summary judgment, the plaintiff must establish that no genuine issue of material fact exists as to the foregoing elements and that plaintiff is entitled to judgment as a matter of law.

The amount of statutory damages is left to the discretion of the Court within the minimum and maximum amounts fixed by statute. See e.g. Hideout Records and Distributors v. El Jay Dee, Inc., 601 F. Supp. 1048, 1054 (D.Del. 1984). The factors which courts have considered in exercising such discretion include (1) expenses saved and profits reaped by defendants in connection with the infringement; (2) revenues lost by the plaintiffs; and (3) whether the infringement was willful and knowing, or whether it was accidental and innocent.

" Testimony that one does not recall certain events is not equivalent to testimony that it did not happen. Broad. Music, Inc. v. Allis , 667 F.Supp. 356, 358 n.2 (S.D. Miss. 1986) ("An affiant's failure to remember an event is not a specific denial that the event occurred for purposes of summary judgment."); Hideout Records & Distributors v. El Jay Dee, Inc. , 601 F.Supp. 1048, 1053 (D. Del. 1984) ("First, Mrs. Nelkin's statement that she cannot remember hearing the songs played does not place in dispute the statements of Hood and Verna that the songs were in fact played since an affiant's failure to remember an event is not a specific denial that the event occurred. See, e.g. , Lemelson v. The Bendix Corp., et al. , C.A. No. 82–308, Slip Op. at 3, fn. 2 (D. Del., January 23, 1984).").

Her failure to recall does not place the context of the photo's display in dispute, since a “failure to remember an event is not a specific denial that the event occurred.” See Hideout Records & Dist. v. El Jay Dee, Inc., 601 F.Supp. 1048, 1053 (D.Del.1984). See also Bixler v. Cent. Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1301–02 (3d Cir.1993) (internal quotation marks omitted) (alteration in original) (construing statement—“I don't.

With regard to paragraphs 5 and 6 of Ms. Corber's affidavit, the court did not consider this evidence because Ms. Corber failed to indicate whether she has personal knowledge of the incidents described. Fed.R.Civ.P. 56(c) (affidavits must be based on personal knowledge); Hideout Records and Distrib. v. El Jay Dee, Inc., 601 F. Supp. 1048, 1053 (D.Dela. 1984) (affidavit must not only be made on the personal knowledge of affiant but must show on its face that the affiant possesses the knowledge asserted). The court cannot determine from her affidavit whether Ms. Corber personally witnessed the conduct or whether she simply heard about it from other employees at Hall-Mark Electronics.

Faced with defendant's evidence on this matter which directly contradicts plaintiffs' unsupported allegations, I must conclude that there is no genuine issue of material fact concerning the use of the land on which the tree was located. Hideout Records Distrib. v. El Jay Dee, Inc., 601 F. Supp. 1048, 1053 (Del. 1984); 10A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 2727 (1983). Since the only evidence on the record clearly establishes that the land in question was open to the public and in fact used by the public, defendant is not precluded from asserting the immunity granted by 68 P.S. § 477-1 et seq. as asserted by plaintiffs.

A statement that one does not remember whether an event occurred is not tantamount to a specific denial that the event occurred. Hideout Records Distributors v. El Jay Dee, Inc., 601 F. Supp. 1048, 1053 (D.Del. 1984). Accordingly, Feeney's testimony is uncontroverted and must be accepted by the Court as true.

See Affidavits of Wallace Ridgeway Mike Horner. Defendants do not recall whether the compositions owned and controlled by plaintiffs were played at George Henry's restaurant on the date claimed. This failure to recall whether the musical compositions were performed does not raise specific facts sufficient to overcome plaintiffs' showing that the compositions were performed. Hideout Records Distributors v. El Jay Dee, Inc., 601 F. Supp. 1048, 1053 (D.Del. 1984). Thus, the Court concludes that the six musical compositions at issue in this litigation were broadcast at the restaurant on the date in question.

However, in a copyright infringement action of this type, the doctrine of respondeat superior is inapplicable. See Shapiro, Bernstein Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (while normal agency rule of respondeat superior applies to servant acting within the scope of his employment, where an individual has the right and ability to supervise the infringing conduct and a financial interest in exploitation copyright law is best effected by imposing liability on the one benefiting from the infringement); Hideout Records Distribs. v. El Jay Dee, Inc., 601 F. Supp. 1048, 1052 (D.Del. 1984) (court rejected use of statute shielding corporate officers, directors, and shareholders from liability for debts as a shield against copyright infringement liability). Instead, liability for copyright infringement may be imposed upon an officer, director or shareholder so long as the individual "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities."

Thus, those facts are accepted as true. See Washington Osteopathic Med. Ass'n v. King Cy. Med. Serv. Corp., 78 Wn.2d 577, 579, 478 P.2d 228 (1970); see also Zurita v. Virgin Islands Daily News, 578 F. Supp. 306, 309 (D.V.I. 1984); Hideout Records Distribs. v. El Jay Dee, Inc., 601 F. Supp. 1048, 1053 (D. Del. 1984) (and cases cited therein). This principle takes on added weight in the context of defamation cases, where the plaintiff has the burden of making a prima facie case.