Broad. Music, Inc. v. C.B.G., Inc.

BROADCAST MUSIC, INC.; SONY/ATV SONGS LLCd/b/a SONY/ATV TREE PUBLISHING; VELVET APPLE MUSIC;WARNER-TAMERLANE PUBLISHING CORP.; CYANIDE PUBLISHING;RATTMUSIC; TIME COAST MUSIC; RIGHTSONG MUSIC, INC.;SHIRLEY EIKHAR USA MUSIC; EMI BLACKWOOD MUSIC INC.;TOKECO TUNES; WACISSA RIVER MUSIC; UNIVERSAL-SONGSOF POLYGRAM INTERNATIONAL, INC.; FUEL PUBLISHING INC.d/b/a PENER PIG PUBLISHING SONGS OF UNIVERSAL, INC.;ESCATAWPA SONGS; INTERIOR MUSIC CORP.;MUSIC SHOALS SOUND PUBLISHING CO.; PEERMUSIC III, LTD.;EMBASSY MUSIC CORPORATION; and RETRIBUTION MUSIC, Plaintiffs, v. C.B.G., INC. d/b/a/ BEEMERS PUB RESTAURANT & LOUNGE,and PETER C. COTE, individually, Defendants.

CIVIL ACTION NO. 11-40142-TSH

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 15, 2013

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY

JUDGMENT (Docket No. 40)

HILLMAN, D.J.

Background

Plaintiffs Broadcast Music, Inc. ("BMI"), Sony/ATV Songs LLC, Velvet Apple Music, Warner-Tamerlane Publishing Corp., Cyanide Publishing, Ratt Music, Time Coast Music, Rightsong Music, Inc., Shirley Eikhard USA Music, EMI Blackwood Music, Tokeco Tunes,Wacissa River Music, Universal-Songs of Polygram International, Inc., Fuel Publishing, Escatawpa Songs, Interior Music Corp., Music Shoals Sound Publishing Co., Peermusic III, Ltd., Embassy Music Corporation, and Retribution Music (collectively, "Plaintiffs") brought suit alleging copyright infringement against C.B.G. Inc. ("CBG") and Peter C. Cote ("Cote") (collectively, "Defendants"). Plaintiffs now move for Summary Judgment in Plaintiffs' Motion for Summary Judgment (Docket no. 40), seeking summary determination that: (1) Defendants have infringed the copyrights identified in Plaintiffs' Amended Complaint on the dates in question; (2) such infringement was willful; (3) Defendants are jointly and severally liable for such infringement; and (4) Plaintiffs are entitled to statutory damages from defendants in the amount of $2,500 per work infringed for a total award of $35,000. For the reasons set forth below, Plaintiffs' motion for summary judgment is granted, and Plaintiff is entitled to statutory damages in the amount of $1,500 per work infringed for a total award of $21,000.

Facts

BMI is a non-profit "performing rights society" that licenses the right to publicly perform copyrighted musical works on behalf of the owners of those works. BMI acquires non-exclusive public performance rights from such owners, and has acquired these rights from each of the other plaintiffs in this action. BMI then grants music users, such as owners and operators of restaurants and nightclubs, the right to publicly performs works in BMI's repertoire though "blanket license agreements." BMI currently licenses the public performance of over 7.5 million musical works. BMI distributes all income, after deducting operating expenses and reasonable reserves, to the owners of the musical works, such as the other plaintiffs in this case.

CBG and Cote, the Treasurer and sole Director of CBG, owned, operated, and controlled Beemers Pub in Fitchburg, Massachusetts at all times relevant to this case. Sometime beforeMarch 24, 2010 BMI discovered that music was being performed at Beemers Pub without a license from BMI or other permission from the copyright owners. On March 24, 2010 BMI sent Defendants a letter explaining that a license was required to publically perform BMI music. Over the next 14 months, BMI sent 34 additional letters and emails regarding licensing. Letters sent in January and March 2011 explicitly warned Defendants about copyright infringement. BMI also made 47 telephone calls to Beemers Pub to explain the need for a license. BMI staff spoke to Cote personally about this issue six times.

By April 2011 Beemers Pub still did not have a license to play BMI music. BMI sent David Mosley to visit Beemers Pub and make an audio recording and written report of the music performed. Mr. Mosley did so on the evening of April 26, 2011 through the early morning of April 27, 2011. During this visit eight songs licensed by BMI were performed. On May 10, 2011 BMI sent Defendants a letter informing them of the investigation and giving them another chance to enter a licensing agreement with BMI. Defendants did not do so, and on June 20, 2011, Plaintiffs filed this suit.

Incredibly, over the next 16 months Beemers Pub continued to have live music performances without a license from BMI. On October 19, 2012 BMI sent Damon Wallace to Beemers Pub to make an audio recording and written report of the music performed. On this date six songs licensed to BMI were played.

CBG is presently licensed by BMI

Discussion

Standard of Review

Summary judgment is appropriate when "there is no genuine issue as to any material fact" and thus "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).An issue is "genuine" when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is "material" when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The moving party is responsible for "identifying those portions [of the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1968). It can meet its burden either by "offering evidence to disprove an element of the plaintiff's case or by demonstrating an 'absence of evidence to support the non-moving party's case.'" Rakes v. U.S., 352 F. Supp. 2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 4). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex, 477 U.S. at 325). When ruling on a motion for summary judgment, the court must construe the facts in the light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003).

Infringement

To establish a case of copyright infringement based on a public performance "a plaintiff must demonstrate (1) originality and authorship of the work involved; (2) compliance with all formalities required to secure a copyright under the Act; (3) plaintiff's ownership of the copyright in question; (4) public performance of the work; and (5) lack of authorization for the performer to perform the work." Polygram Int'l Pub., Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1320 (D. Mass. 1994) (citing 17 U.S.C. §§ 101-106, 501). The first three elements are not at issue here, as Plaintiffs' evidence, including Certificates of Registration establishes each of the first three elements, and Defendants do not refute any of them. See 17 U.S.C. 410(c) ("In any judicial proceedings the certificate of a registration made before or within five years after firstpublication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.").

The BMI investigators' certified infringement reports and audio recordings of the performances sufficiently demonstrate the fourth element, public performance, of the 14 BMI songs. Defendants have no evidence on the summary judgment record refuting that the performances took place, and have admitted they do not know whether or not the BMI songs were played on the nights in question. Defendants only argument here is that the recordings of the performances on those nights should be omitted from the record because they were obtained in violation of federal and state wiretapping statutes. This argument, while novel, is baseless as these were public performances, not private oral communications, that Plaintiffs agent was permitted to attend as a member of the public. See 18 U.S.C. 2511(d) ("It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication"). Even if Plaintiffs violated the state statute, suppression of the evidence is not appropriate. See M.G.L. c. 272 § 99 (providing for suppression of evidence in criminal trials only). Moreover, even if this Court omitted the audio recordings from the record, the written reports of Plaintiffs' agents adequately show BMI songs were performed at Beemers Pub on the nights in question.

Defendants argue that there exists a genuine issue of material facts on the fifth element, lack of authorization for the performer to perform the work. Defendants do not have evidence showing, nor do they claim, that they had a license for the public performance of the works BMI has shown were played on the nights in question. Instead, Defendants argue that the performer hired by Defendants may have been licensed, and that the songs performed were owned by the American Society of Composers, Authors and Publishers ("ASCAP"), another performing rightsorganization, which did have a licensing agreement with Defendants. The record supports neither of these arguments. The uncontroverted declaration of BMI Assistant Vice Present Lawrence E. Stevens explains that the performers at Beemers Pub on the nights in question were not licensed by BMI, as BMI licenses premises where music is performed rather than individual disc jockeys. The claim that the songs were ASCAP rather than BMI songs is similarly unsupported by the evidence. Defendants have submitted evidence merely showing that songs with similar titles to those performed are licensed by ASCAP; none of the songs Defendants found on the ASCAP database are the songs that BMI has demonstrated were played at Beemers Pub. There is no question that the public performances in question occurred and constituted copyright infringement of 14 musical works licensed to BMI.

Vicarious Liability

Defendants argue that even if copyright infringement occurred, there is an issue of...