Baccaro v. Pisa

• Decision Date: 21 March 1966
• Parties: Mario BACCARO, as Trustee and Executor of the Estate of Antonio De Martino, Deceased, who did business under the name and style of Italian Book Co., Plaintiff, v. Vito PISA, Ivon B. Newman and Newark Broadcasting Corp., Defendants.
• Court: U.S. District Court — Southern District of New York

252 F. Supp. 900

Mario BACCARO, as Trustee and Executor of the Estate of Antonio De Martino, Deceased, who did business under the name and style of Italian Book Co., Plaintiff, v. Vito PISA, Ivon B. Newman and Newark Broadcasting Corp., Defendants.

United States District Court S. D. New York.

March 21, 1966.

Arthur E. Garmaize, New York City, for plaintiff.

Irving Younger, New York City, for defendants.

FREDERICK van PELT BRYAN, District Judge:

On September 28, 1965, plaintiff recovered a default judgment against defendant Pisa on the issue of liability for copyright infringement after Pisa's answer had been stricken for failure to appear for examinations on deposition and refusal to file answers to interrogatories. See Rule 37(d), F.R.Civ.P. Plaintiff now moves for summary judgment solely on the remaining issues of damages and counsel fees.

The material facts are relatively simple. Plaintiff, as executrix of the Estate of Antonio De Martino, is suing as the copyright proprietor of two Italian musical compositions entitled "Dicitencello Vuie" and "Parlami D'Amore, Mariu." Defendant Pisa is the owner of a New York restaurant, the "Chez Vito." Defendant Newark Broadcasting Corp. operates Radio Station WVNJ, located in Newark, New Jersey. Defendant Newman is the General Manager of Station WVNJ. None of the issues as to defendants Newark Broadcasting and Newman have yet been determined.

Some time during 1959 in Rome, Italy, Pisa—acting through a corporation under his control, Vito Records, Ltd.—manufactured a long-playing album entitled "The Three Musketeers of the Opera at Chez Vito." This record included reproductions of the two musical compositions sued on here. Thereafter Pisa and Newman apparently concluded an informal arrangement whereby the record would be played over the AM and FM facilities of Station WVNJ. Each of the copyrighted compositions recorded in the album was broadcast over WVNJ-AM on eleven occasions between September 8, 1960, and March 7, 1962, and over WVNJ-FM on eight occasions between August 3, 1961 and March 7, 1962. The Chez Vito restaurant was the obvious beneficiary of any favorable publicity. These broadcasts constituted public performances for profit in violation of plaintiff's rights under the Copyright Law. 17 U.S.C. § 1(e). And defendant Pisa's liability for infringement has been established by the judgment against him.¹

Since plaintiff is unable to prove his actual damages as a result of Pisa's failure to comply with the orders of this court, he perforce seeks to recover his due "in lieu of actual damages and profits" under the applicable provisions of the copyright law.² In the language of the statute an award thereunder should ultimately reflect "such damages as to the court shall appear to be just." Plaintiff urges that as far as the radio broadcasts are concerned³ justice requires nothing less than a finding that he is entitled to the statutory minimum of $250 every time one of the recordings of a copyrighted song was broadcast over either the AM or FM facilities of Station WVNJ. On the other hand, Pisa contends that a "just" damage award should amount to no more than $500, twice the statutory minimum for each of the two copyrights.

Thus the question for decision here is whether the series of broadcasts constituted two "infringements" by the defendant Pisa, 25 as plaintiff urges,⁴ or some other number which would more readily yield a "just" award of damages.

The literal language of § 101(b), combining as it does an "ambiguous hodgepodge of improvisations,"⁵ provides only vague outlines for the solution of the problem. At one extreme, plaintiff's insistence that every infringing performance justifies a minimum award of $250 would nullify the statutory yardstick provision prescribing "$10 for every infringing performance" of a copyrighted musical composition. On the other hand, defendant apparently takes the position that the mandatory minimum and maximum figures prescribed for each "case" do not apply to each "infringement" as § 101(b) suggests, but only apply to the number of copyrighted works infringed, viz. two. Thus under defendant's reading of the statute a single copyright can be infringed only once.

Neither of the interpretations advanced by the competing parties offers a satisfactory means of reconciling the various terms of the statute or achieving the ultimate objective here—the assessment of a "just" damage award.

Fortunately, the case law under § 101 (b) is more instructive. The issue was posed, but not conclusively decided, in L. A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L. Ed. 499 (1919), where the Supreme Court found that two publications of a single copyrighted pictorial illustration at 26 day intervals constituted separate and distinct cases of infringement, justifying an award of twice the statutory minimum. But the court reserved judgment on whether the outcome would have been otherwise if the "second publication had been merely a continuation or repetition of the first." Id. at 105-106, 39 S. Ct. at 195. Compare Jewell-La Salle Realty Co. v. Buck, 283 U.S. 202, 51 S.Ct. 407, 75 L.Ed. 978 (1931).

The judicial adumbrations of the reservation in the Westermann opinion have been fairly summarized by Nimmer:

"if the interval between succeeding publications is a matter of days the courts will be inclined to consider all such publications as part of a single infringing transaction, requiring but a single minimum damages award. If the interval between succeeding publications is for a substantially longer period then the courts will view each publication as giving rise to a separate claim for at least minimum damages." Copyright § 154.32, at 689 (1964) (footnotes omitted).

Thus the guiding "principle" distilled from the case law for the most part amounts to no more than a rather wooden reliance upon an arbitrary time standard. Successive publications at weekly,⁶ monthly,⁷ or yearly⁸ intervals will be treated as separate "infringements," whereas a time lapse of merely two or three days⁹ makes the succeeding publications "a continuation or repetition of the first."

It has also been suggested "that the nature of the business transaction giving rise to the infringement is significant, implying that a single integrated business transaction would result in one infringement, while separate and distinct transactions would result in more than one." Davis v. E. I. DuPont de Nemours & Co., 249 F.Supp. 329, 337 and n. 23 (S.D.N.Y. Jan. 20, 1966); cf. Markham v. A. E. Borden, 108 F.Supp. 695 (D. Mass.1952), rev'd on other grounds, 206 F.2d 199 (1 Cir. 1953). Accepting the view that a finding of multiple infringements may be necessary "to discourage wrongful conduct," F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233, 73 S.Ct. 222, 97 L.Ed. 276 (1952); see Shapiro, Bernstein & Co. v. Remington Records, Inc., 265 F.2d 263, 273 (2 Cir. 1959), a rule which looks to the circumstances surrounding each infringing transaction makes sense in this case because the ultimate objective here is to determine the number of distinct occasions defendant Pisa has engaged in a separate taking of plaintiff's property as it is defined and safeguarded by the copyright law.

So viewed, I reject at the outset plaintiff's contention that the AM and FM broadcasts which occurred simultaneously on six separate dates each constituted separate "infringements" of the copyrighted compositions. The actual act of infringement in each instance occurred only once by playing the album over the recording facilities of the radio station.¹⁰ Compare Cory v. Physical Culture Hotel, 14 F.Supp. 977, 985 (W.D.N. Y.1936). The result would not be changed by the fact that different audiences may have been reached through the two frequencies. A persuasive analogy is found in Davis v. E. I. duPont de Nemours & Co., 249 F.Supp. 329 (S.D. N.Y. Jan. 20, 1966). There Judge Feinberg in an exhaustive opinion held that an infringing television network broadcast, reaching 162 separate audiences, nevertheless constituted only one "infringement" for purposes of the statutory damage provisions of § 101(b). In any event, in view of my ultimate decision here, there is no reason to conclude that the assessment of a "just" award necessitates a holding that the simultaneous broadcasting of a single musical composition over both AM and FM frequencies amounts to two separate "infringements."

The pivotal question here, then, in the words of the Supreme Court, is whether each successive broadcast was "merely a continuation or repetition of the first." Under the decisional law the case at bar is relatively simple: the separate broadcasts at monthly intervals¹¹ each constituted a distinct "case" of "infringement." It may be readily concluded that each playing of a copyrighted composition was a separate taking of plaintiff's property for purposes of § 101(b). This is a case where the treatment of "each stick in a faggot as a single infringement unit" is manifestly proper. Cf. Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). Computing the loss in this fashion, the damages in the case at bar amount to $4,750, the $250 minimum multiplied by each of the 19 infringements.¹²

There is nothing in Congress' open-ended direction to the courts to assess a "just" award under § 101(b) which would indicate that these damages should either be augmented or diminished. Pisa has made no effort to prove that the subsequent infringements were merely continuations or repetitions of the first. Since he does not disclaim knowledge of plaintiff's rights with regard to the broadcasts before the receipt of written notice from plaintiff on June 27, 1961, Pisa cannot convincingly urge that this series of broadcasts might be more realistically viewed as unintentional repetitions of the initial infringements of the two copyrights.¹³ Rather, a default judgment was entered against...