Hideout Records & Dist. v. El Jay Dee, Inc.

• Decision Date: 19 March 1984
• Docket Number: Civ. A. No. 81-177 CMW,81-428 CMW.
• Citation: 601 F. Supp. 1048
• Parties: HIDEOUT RECORDS AND DISTRIBUTORS, et al., Plaintiffs, v. EL JAY DEE, INC., et al., Defendants. ANGEL WING MUSIC, et al., Plaintiffs, v. EL JAY DEE, INC., et al., Defendants.
• Court: U.S. District Court — District of Delaware

601 F. Supp. 1048

HIDEOUT RECORDS AND DISTRIBUTORS, et al., Plaintiffs, v. EL JAY DEE, INC., et al., Defendants.

ANGEL WING MUSIC, et al., Plaintiffs, v. EL JAY DEE, INC., et al., Defendants.

Civ. A. Nos. 81-177 CMW, 81-428 CMW.

United States District Court, D. Delaware.

March 19, 1984.

Jane R. Roth, Richards, Layton & Finger, Wilmington, Del., for plaintiffs.

Phillip J. Collins, Wilmington, Del., for defendants.

MEMORANDUM OPINION

CALEB M. WRIGHT, Senior District Judge.

This is a consolidated action for copyright infringement arising under the United States Copyright Act, 17 U.S.C. §§ 101 et seq., in which plaintiffs seek an injunction prohibiting further infringing performances of the musical compositions in question, statutory damages in an amount ranging between $250 and $10,000 for each infringement, and costs, including reasonable attorneys' fees. Presently before the Court is plaintiffs' motion for default judgment or, in the alternative, for summary judgment. For the reasons discussed below, the Court grants plaintiffs' motion for summary judgment.

FACTS

Plaintiffs own the copyrights to seven popular songs¹ which they claim were infringed by the unauthorized public performances of the songs on the nights of February 20-21, 1981 and August 9-10, 1981 at defendants' establishment, the Red Lantern Inn in New Castle, Delaware. Each of the plaintiffs is a music publisher and a member of the American Society of Composers, Authors, and Publishers (hereinafter "ASCAP"),² and each of the plaintiffs has granted ASCAP a non-exclusive right to license non-dramatic public performances of their copyrighted musical compositions. Defendants are the proprietors of the Red Lantern Inn, an establishment providing live entertainment in New Castle, Delaware. Defendant El Jay Dee, Inc. owns and operates the Red Lantern Inn, with defendant Frank Nelkin, Jr. acting as President, and defendant Hiawanna Nelkin acting as Vice-President and Secretary.³

The basis for plaintiffs' motion for default judgment is the failure of defendant Hiawanna Nelkin to appear for one of her noticed depositions. This deposition was scheduled to occur on December 20, 1982.⁴ See Appendix B to Plaintiffs' Opening Brief (Dkt. No. 47). Mrs. Nelkin contends that she was never given notice that a deposition had been scheduled for December 20, 1982 and that her failure to appear was not wilful but rather due to circumstances beyond her control. See Exhibit B to Defendants' Answering Brief (Dkt. No. 51). Plaintiffs contend that Mrs. Nelkin failed to appear even though she was repeatedly notified of it by her attorney. The plaintiffs conclude that her failure to appear constitutes a wilful disregard of her obligations sufficient to justify entry of default judgment. See Appendix A to Plaintiffs' Reply Brief and Plaintiffs' Reply Brief at 3-5 (Dkt. No. 57).

As an alternative to entry of default judgment, plaintiffs seek entry of summary judgment, alleging that they have offered uncontradicted proof of both copyright ownership and infringing performance. Plaintiffs have submitted copies of copyright registration certificates and other documents to prove ownership and defendants do not dispute that plaintiffs are the owners of the copyrights to the musical compositions at issue in this litigation. See Affidavit of Anne Sullivan and accompanying Exhibits (Dkt. No. 48). However, defendants do dispute plaintiffs' affirmative proof of infringing performance, alleging that there are material issues of fact concerning whether the songs in issue were actually performed at the Red Lantern Inn on the nights in question. See Defendants' Answering Brief at 3-4 (Dkt. No. 51).

Plaintiffs have submitted the affidavits of four individuals as proof that the songs in issue were performed at the Red Lantern Inn on the nights of February 20-21, 1981 and August 9-10, 1981. The affidavits of Donald Hood and Raymond Verna state that the band playing at the Red Lantern Inn on the evening of February 20-21, 1981 performed five songs at issue in this litigation, titled "Betty Lou's Getting Out Tonight", "Tulsa Time", "Fooled Around And Fell In Love", "Roadhouse Blues", and "Jailhouse Rock". (Dkt. Nos. 44, 59, 61). The affidavits of Steven Shore and Michael Suchodolski state that the band playing at the Red Lantern Inn on the evening of August 9-10, 1981 performed three songs at issue in this litigation, titled "She Believes In Me (a/k/a While She Lays)", "Blue Eyes Crying In The Rain", and "Tulsa Time". (Dkt. Nos. 58, 60).

Defendants have submitted no affidavits to refute the affidavits of Shore and Suchodolski on the issue of performance of the three songs at issue on the night of August 9-10, 1981. Defendants have, however, submitted one affidavit that they allege refutes the affidavits of Hood and Verna on the issue of performance of the five songs at issue on the night of February 20-21, 1981. That affidavit, filed by Mrs. Nelkin, states in pertinent part:

4. Although I had advertised that the band, Sheer Panic, would appear that night, Sheer Panic was not able to attend the Red Lantern Inn on February 20-21, 1981. As their replacement, my calendar shows and I remember that, the band Southwind performed on that night. The statement that Sheer Panic appeared at the Red Lantern Inn on February 20-21, 1981 in the notes attached to the affidavit of David Hood, dated May 27, 1983, is not correct. I do not keep notes of every song bands played at the Red Lantern Inn, but I do not recall hearing Southwind play any of the five songs that Donald Hood says in his affidavit and notes that Southwind played. As I recall, Southwind did not play the kind of music represented by the five (5) songs in Donald Hood's affidavit. I have tried to locate Southwind or its members or agent but have been unsuccessful. Southwind disbanded long ago. I have examined and read Donald Hood's affidavit.

See Exhibit B to Defendants' Answering Brief (Dkt. No. 51). Defendants conclude that Mrs. Nelkin's affidavit is sufficient to raise a genuine issue of fact precluding summary judgment.

Defendants raise two other matters relevant to plaintiffs' motion for summary judgment. First, defendants contend that summary judgment against the individual defendants is inappropriate since they are shielded from personal liability by 8 Del.C. § 325. See Defendants' Answering Brief at 3-4 (Dkt. No. 51). Second, defendants contend that, while they had no ASCAP license at the time of the alleged performances,⁵ their failure to renew the license and pay the license fees was based on their attorney's advice that ASCAP's licensing scheme violated the antitrust laws. See Exhibit B to Defendants' Answering Brief (Dkt. No. 51). Defendants conclude that plaintiffs' claims for injunctive relief, statutory damages, costs and reasonable attorneys' fees should be denied.

DISCUSSION

The Court finds that plaintiffs are entitled to summary judgment and grants plaintiffs' request for injunctive relief, statutory damages, costs and reasonable attorneys' fees.⁶ In so holding, the Court concludes that there are no genuine issues of material fact remaining to be tried and that defendants' other contentions relating to plaintiffs' motion for summary judgment are without merit.

In order to prove that their copyrights have been infringed, plaintiffs bear the burden of demonstrating five elements:

1. the originality and authorship of the songs allegedly infringed;

2. compliance with the formalities of the Copyright Act;

3. that plaintiffs are proprietors of the copyrights;

4. that the songs were performed as alleged; and

5. that such performance was without proper authorization.

See, e.g., Broadcast Music, Inc. v. Moor-Law, Inc., 484 F.Supp. 357, 362 (D.Del. 1980). In this case, there is no genuine issue of material fact relating to plaintiffs' evidence of originality and authorship, compliance with the statutory formalities, and ownership of the works allegedly infringed. Plaintiffs have filed copies of the copyright registration certificates and copies of all relevant assignments relating to the seven songs at issue here. See Affidavit of Anne Sullivan and accompanying exhibits (Dkt. No. 48). These documents constitute prima facie evidence of the first three elements required to be established by plaintiffs, see Broadcast Music, Inc. v. Moor-Law, Inc., supra, at 362-63, and defendants do not dispute plaintiffs' contentions relating to these elements.

Defendants, however, do dispute plaintiffs' contentions relating to the last two elements required to be proved in a claim for copyright infringement. Apparently, defendants contend that their reliance on their attorney's erroneous advice that ASCAP's licensing scheme violated the antitrust laws justified their failure to renew the license and pay the license fees. The Court finds that this contention is meritless. In the absence of permission from the copyright owner, performances of protected musical compositions are infringements of copyright. This is so even if defendants' failure to renew the license and pay the license fees was based on their attorney's mistaken advice as to the legal consequences of their actions and even if defendants believed in good faith that they were not infringing plaintiffs' copyrights. See, e.g., Universal City Studios v. Sony Corp. of America, 659 F.2d 963, 975 (9th Cir.1981), rev'd on other grounds, 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) ("a defendant's mistake as to the legal consequences of his actions does not constitute an excuse for infringement"); Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir.1978) (even if defendant believes in good faith that he is not infringing plaintiff's copyright, he may be found liable). Therefore, defendants' contentions relating to their failure to renew their license prior to the time of the alleged infringing performances provide no excuse for their failure to obtain proper authorization and cannot...