Blendingwell Music, Inc. v. Moor-Law, Inc.

• Decision Date: 01 February 1985
• Docket Number: Civ. A. No. 82-739 CMW.
• Citation: 612 F. Supp. 474
• Parties: BLENDINGWELL MUSIC, INC., et al., Plaintiffs, v. MOOR-LAW, INC. and Robert C. Moor, Jr., Defendants.
• Court: U.S. District Court — District of Delaware

612 F. Supp. 474

BLENDINGWELL MUSIC, INC., et al., Plaintiffs, v. MOOR-LAW, INC. and Robert C. Moor, Jr., Defendants.

Civ. A. No. 82-739 CMW.

United States District Court, D. Delaware.

February 1, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jane R. Roth, of Richards, Layton & Finger, Wilmington, Del., for plaintiffs; Ross J. Charap, New York City, of counsel.

Robert C. Moor, Jr., pro se.

MEMORANDUM OPINION

CALEB M. WRIGHT, Senior District Judge.

Plaintiffs have moved for summary judgment in their action for copyright infringement. The action alleges that the defendants acquiesced in, assisted in, and benefited from the unauthorized public performance of copyrighted musical compositions. The plaintiffs are music publishers and members of the American Society of Composers, Authors and Publishers (hereinafter "ASCAP"). ASCAP itself, however, is not a party to this lawsuit, although it took fundamental responsibility for gathering the evidence for plaintiffs' action. Defendant Moor-Law, Inc. (hereinafter "Moor-Law") was the proprietor of the Triple Nickel Saloon (hereinafter "Triple Nickel"), the location of the alleged unauthorized public performances. The other defendant, Robert C. Moor, Jr. (hereinafter "Moor"), was the sole stockholder and sole corporate officer of Moor-Law at the time of the alleged infringements.

FACTS

The Court derives the facts in this action from the record as it stands. The plaintiffs have submitted voluminous evidentiary material to accompany their Motion for Summary Judgment. See Plaintiffs' Opening Brief.¹ The evidentiary material consists of five exhibits² (each exhibit is divided into three parts, containing an affidavit and supporting material) and an appendix in six sections³ (only three of the six sections purport to augment the factual record in this case).

Defendants have not submitted any evidentiary material for the record. In fact, the only response to plaintiffs' motion by defendants was a three page document submitted by defendant Moor and captioned "Defendants sic Argument to Plaintiffs sic Motion and Alternative Motion for Dismissal"⁴ (hereinafter "Moor's Answering Brief"). At best, Moor's Answering Brief could be considered an unsworn statement by Moor.

In addition, the Court has been able to glean additional information from two documents in the Court's file: Moor's deposition⁵ (hereinafter "Moor Dep.") and Plaintiffs' Answers and Objections to Interrogatories⁶ (hereinafter "Plaintiffs' Answers").

Moor-Law was incorporated in 1974. Moor Dep. p. 2. At the time of its incorporation, it had only two stockholders, Moor and Teddy Lawson. Within six months all shares had been transferred to Moor. Moor Dep. p. 6. Moor was the only corporate officer after this time, serving in the capacity of President of Moor-Law.

Originally Moor-Law operated an establishment known as "The Club" on the premises that the Triple Nickel came to occupy. Sometime in 1976, The Club went out of business and was replaced by the Triple Nickel, another establishment owned and occupied by Moor-Law.

The Triple Nickel was a bar and restaurant that provided music for the entertainment of its patrons. Moor Dep. p. 15. An outdoor sign prominently displayed that the establishment featured live country music. Moor Dep. p. 20. Occasionally, the bar advertised its featured artist in local media when the artist was of national repute. Moor Dep. p. 21.

The Triple Nickel at the time of each of the alleged infringements had a manager. The manager oversaw the general operations, which included booking local groups to provide music, Moor Dep. p. 26, negotiating artists' fees of less than two or three hundred dollars a night, and making occasional disbursements out of petty cash. Moor Dep. p. 12.

Moor, however, maintained an active role in supervising the Triple Nickel's operations. He hired the managers, Moor Dep. p. 13, and on one occasion was forced to fire a manager. Moor Dep. p. 13. He made clear to each of his managers that only country and western music was to be played. Moor Dep. p. 23. Moor made the decision when to charge an admission fee for certain performers. Moor Dep. pp. 16, 25. Along with his manager, he scouted local bands to determine whether they were suitable for performing at the Triple Nickel. Moor Dep. pp. 32-33.

Moor was the only individual with authority to sign checks during the period in question. Moor Dep. pp. 8, 11. Perhaps his most significant duty was scheduling the appearance of and negotiating the fee for artists of national stature. Moor Dep. pp. 26-27. His daily attendance at the business varied; sometimes he was there nightly for a month, followed by periods of absence. Moor Dep. p. 28.

Moor has never procured a license to perform copyrighted materials from either ASCAP or members of ASCAP with regard to material for which ASCAP holds a nonexclusive license. ASCAP has always believed that unauthorized public performance, either from live performances or from a jukebox, have taken place, first at The Club, and then at the Triple Nickel. ASCAP has repeatedly encouraged Moor to obtain a license with them as evidenced by correspondence and business records detailing telephone conversation as well as personal visits to his establishment. See Exhibit 1.

Failing in its efforts to get Moor to take a license, ASCAP hired independent agents, each of whom had had musical training, to determine whether copyrighted material for which ASCAP held a non-exclusive license was being performed either live or on a jukebox. On two consecutive evenings, November 16 and 17, 1979, Dawn S. & Donald H. Hood went to the Triple Nickel as paid listeners for ASCAP. See Exhibits 3 and 4. Like the other patrons, they were required to pay an admission fee. They witnessed the performance of twelve compositions that the plaintiffs contend were copyrighted and played without authorization.⁷

On the evenings of January 9 and 17, 1981, D.W. Hart went to the Triple Nickel as a paid listener of ASCAP. See Exhibit 2. He paid an admission charge each evening. He witnessed the performance of six compositions that the plaintiffs contend were copyrighted and played without authorization.⁸

On the evening of June 6 and through the early morning of June 7, 1982, D.W. Hart accompanied by Michael Bailey were in attendance at the Triple Nickel. See Exhibits 2 and 5. Each paid an admission charge. The two witnessed the performance of three compositions that the plaintiffs contend were copyrighted and played without authorization.⁹

The plaintiffs have provided the Court with copyright certificates of registration of each of the twenty-one compositions that they allege were played without authorization. See Appendix Tab F.

THE STANDARD FOR REVIEW

On a motion for summary judgment, the Court must initially determine whether a genuine issue of material fact exists. Fed. R.Civ.Proc. 56(c); Peterson v. Lehigh Valley District Council, United Brotherhood of Carpenters and Joiners, 676 F.2d 81, 84 (3d Cir.1982). No issue of material fact exists, if after drawing all inferences from the existing record in a light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

These well-established principles apply equally to situations in which the parties contest every fact alleged in a case and to situations, as here, in which the non-moving party has failed to offer any evidence in support of his defenses or counterclaims. This case resembles the latter situation, and thus, the primary issue for the Court is whether there are sufficient facts in the record to support a finding of copyright infringement.

To withstand summary judgment, the non-moving party bears the burden of producing evidence in support of his allegations and denials when the record is devoid of such evidence if his allegations or denials are to be resolved in his favor. Fed.R. Civ.Proc. 56(e). This burden of production, however, can be satisfied by evidence introduced by either party which tends to corroborate the non-moving party's allegations or denials. In spite of the risk of an adverse judgment to a non-moving party in failing to offer any evidence, the moving party retains the burden of initially demonstrating the absence of any genuine issue of material fact, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979), and only then is the non-moving parties' burden of production relevant.

THE COPYRIGHT INFRINGEMENT CLAIM

A copyright confers on its owner exclusive right, subject to express limitations, to perform or to authorize performance of copyrighted works. 17 U.S.C. §§ 106 et seq. A violation of the copyright owner's exclusive right over copyrighted materials constitutes infringement for which the copyright owner is entitled to seek legal and statutory remedies against the infringer. 17 U.S.C. §§ 501 et seq.

The plaintiffs allege that the unauthorized performance of the twenty-one compositions either by live bands or on the Triple Nickel's jukebox infringed their copyrights and that Moor-Law and Moor should be liable for these acts of infringement. Plaintiffs are entitled to summary judgment only if they can demonstrate the absence of any disputed facts with respect to the five requisite elements for copyright infringement:

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

2. compliance with the formalities of the Copyright Act 3. that plaintiffs are the proprietors of the copyrights;

4. the compositions were performed publicly as alleged and for profit; and

5. that such performance was without proper authorization.

E.g., Shapiro, Bernstein & Co. v. Log Cabin Club Association, 365 F.Supp. 325, 328 n. 4 (N.D.W.Va.1973) (discussing essential...