725 F.2d 1 (1st Cir. 1983), 83-1499, Morley Music Co. v. Dick Stacey's Plaza Motel, Inc.

Docket Nº:83-1499.
Citation:725 F.2d 1
Party Name:621 MORLEY MUSIC CO., et al., Plaintiffs, Appellees, v. DICK STACEY'S PLAZA MOTEL, INC., et al., Defendants, Appellants.
Case Date:December 16, 1983
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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725 F.2d 1 (1st Cir. 1983)

621

MORLEY MUSIC CO., et al., Plaintiffs, Appellees,

v.

DICK STACEY'S PLAZA MOTEL, INC., et al., Defendants, Appellants.

No. 83-1499.

United States Court of Appeals, First Circuit

December 16, 1983

Argued Nov. 8, 1983.

Sandra Hylander Collier, Bar Harbor, Maine, with whom William S. Silsby, Jr., and Silsby & Silsby, Ellsworth, Maine, were on brief, for defendants, appellants.

John W. Philbrick, Portland, Maine, with whom Verrill & Dana, and Richard H. Reimer were on brief, for plaintiffs, appellees.

Before COFFIN, Circuit Judge, ROSENN, [*] Senior Circuit Judge, and BREYER, Circuit Judge.

COFFIN, Circuit Judge.

Plaintiffs are four music publishing companies, all members of the American Society of Composers, Authors and Publishers (ASCAP). Alleging copyright infringement by defendants Richard Stacey and Dick Stacey's Plaza Motel, Inc., plaintiffs brought suit in June, 1982, in the United States District Court for the District of Maine, seeking injunctive relief, statutory damages "in lieu" of actual damages, 17 U.S.C. Sec. 504(c)(1), 1 attorney's fees and costs.

The deposition of defendant Stacey was taken on November 5, 1982. At a pretrial conference on January 12, 1983, a motion to compel defendants to produce records hitherto withheld was granted and the report of the pretrial conference indicated that plaintiff would soon file a motion for summary judgment. Such a motion was filed on April 7, 1983, accompanied by two affidavits of persons who had spent the evening of January 24, 1982 at the Plaza Motel and

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had heard four pieces of plaintiffs' music played and sung, even though defendants had failed to obtain permission to perform ASCAP copyrighted works from ASCAP or plaintiffs. The motion was also supported by the affidavit of an ASCAP district manager, who noted that from 1978 to 1981 two dozen contacts--in person, by mail or telephone--had taken place between plaintiffs and defendants alerting defendants to plaintiffs' copyright claims. The affidavit also stated that had defendants paid appropriate ASCAP license fees from 1978 to 1983, the payments would have aggregated some $4,500.

On April 29, 1983 the court issued a default judgment because, in violation of local rule 19(b) of the district court, defendants had made no response to the motion for summary judgment within 10 days. The court asked plaintiffs to prepare a form of injunctive order. Not until May 3, almost a month after the motion for summary judgment was filed, did defendants take any action. They prayed for partial relief from the judgment, averring that counsel had been unfamiliar with the local rule and claiming that there was an issue of...

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