Boz Scaggs Music v. KND Corp.

• Decision Date: 03 April 1980
• Docket Number: Civ. No. H-79-235.
• Citation: 491 F. Supp. 908
• Parties: BOZ SCAGGS MUSIC et al. v. KND CORPORATION et al.
• Court: U.S. District Court — District of Connecticut

491 F. Supp. 908

BOZ SCAGGS MUSIC et al. v. KND CORPORATION et al.

Civ. No. H-79-235.

United States District Court, D. Connecticut.

April 3, 1980.

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COPYRIGHT MATERIAL OMITTED

Robert L. Keepnews, Gerald S. Sack, Alcorn, Bakewell & Smith, Hartford, Conn., for plaintiffs.

Glenn T. Terk, Greene & Bloom, Hartford, Conn., for defendants.

MEMORANDUM OF DECISION

BLUMENFELD, Senior District Judge.

This is an action for copyright infringement, with jurisdiction founded on 28 U.S.C. § 1338(a) (1976). The plaintiffs are the proprietors of copyrights in 23 musical compositions,¹ and all of them belong to the American Society of Composers, Authors and Publishers (ASCAP), an unincorporated association with over 23,000 members. On behalf of its members, ASCAP licenses commercial radio and television stations, restaurants, nightclubs, and other establishments for non-dramatic public performances of copyrighted musical compositions owned by the members. If a licensee fails to pay the fees properly owed to ASCAP and efforts to resolve the delinquency or breach are unsuccessful, ASCAP terminates its license with that user. If the user then persists in performing copyrighted works owned by ASCAP members without permission from the individual copyright owners, those owners commence copyright infringement actions similar to the instant litigation. Affidavit of Joshua S. Wattles, ¶ 2 (Dec. 12, 1979) hereinafter Wattles Affidavit.

Defendant KND Corporation operates a commercial radio station for profit in Windsor, Connecticut known by the call letters WKND.² Co-defendant Kenneth N. Dawson is and was at all relevant times the vice-president of KND Corporation and general manager of WKND. In the latter capacity, Dawson is responsible for "overseeing the day-to-day activities of the station," including responsibility for the direct supervision of the music director. Deposition of Kenneth N. Dawson at 30, 48, 75 (Sept. 21, 1979) hereinafter Dawson Deposition. He spends an average of 40 hours per week at the station. See id. at 41.

The material facts giving rise to this lawsuit are undisputed. WKND has not been licensed by ASCAP since March 1, 1977, a prior licensing agreement having expired on the previous day without renewal. Dawson Deposition at 64. Nevertheless, the station apparently continued to broadcast copy-righted musical compositions owned by ASCAP members without payment of fees to ASCAP or permission of the individual copyright holders. On August 10 and 11, 1977, and again on September 7 and 8, 1977, an ASCAP employee monitoring WKND's programming made tape recordings of the station's broadcasts, which included 23 musical compositions in which the plaintiffs hold copyrights. Deposition of Mario Sabatini at 3-5 (Feb. 4, 1980); see Affidavit of Kenneth Ayden at 2 (Dec. 17, 1979).

In response to this discovery, ASCAP sought payment of license fees from WKND retroactive to March 1, 1977. Counsel for ASCAP warned Dawson on March 15, 1979 that the failure to remit payment of such fees would result in the commencement of litigation. Wattles Affidavit at 3 & Exhibit 6. When Dawson failed to respond to ASCAP's satisfaction, this action was filed. Charging that the defendants infringed the plaintiffs' copyrights in the 23 musical works mentioned above, the complaint prays for injunctive relief, statutory damages, costs, and attorneys' fees.

The plaintiffs have now moved for summary judgment under Fed.R.Civ.P. 56. Because "the pleadings, depositions, . . . and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," id. 56(c), the motion must be granted. Shapiro, Bernstein & Co. v. "The Log Cabin Club Association," 365 F.Supp. 325, 328 (N.D.W.Va.1973) (citing Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, Inc., 141 F.2d 852 (2d Cir.), cert. denied, 323 U.S. 766, 65 S.Ct. 120, 89 L.Ed. 613 (1944), and Houghton Mifflin Co. v. Stackpole Sons, Inc., 113 F.2d 627 (2d Cir. 1940)).

Liability of KND Corporation

"The economic philosophy behind the constitutional clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and useful Arts.'"³ Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954). In order to effectuate that end, Congress "granted valuable, enforceable rights to authors, publishers, etc., without burdensome requirements," Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939), among which is the right to sue for infringement, see 17 U.S.C. § 101 (1976).⁴ In order to establish liability for infringement of copyright in musical compositions, a plaintiff must prove the following:⁵

"(1) the originality and authorship of the compositions involved; (2) compliance with all formalities required to secure a copyright under Title 17, United States Code; (3) that plaintiffs are the proprietors of the copyrights of the compositions involved in this action; (4) that the compositions were performed publicly for profit by the defendants; and (5) that the defendants had not received permission from any of the plaintiffs or their representatives for such performance."

Shapiro, Bernstein & Co. v. "The Log Cabin Club Association," supra, at 328 n.4. Accord, Chess Music, Inc. v. Tadych, 467 F.Supp. 819, 821 (E.D.Wis.1979).

Plaintiffs have made out a prima facie case as to the first three elements by submitting certified copies of copyright registration certificates, recorded assignments of copyright, and other recorded documents pertaining to each of the musical compositions in suit. It has long been established that such documents "raise . . . a presumption of the authorship of lyrics and music indicated therein, and of their originality and of the validity of the copyright in question." Remick Music Corp. v. Interstate Hotel Co., 58 F.Supp. 523, 531 (D.Neb. 1944) (emphasis added), aff'd, 157 F.2d 744 (8th Cir. 1946), cert. denied, 329 U.S. 809, 67 S.Ct. 622, 91 L.Ed. 691 (1947); see Tennessee Fabricating Co. v. Moultrie Mfg. Co., 421 F.2d. 279, 282 (5th Cir.),cert. denied, 398 U.S. 928, 90 S.Ct. 1819, 26 L.Ed.2d 91 (1970). With respect to 19 of the 23 songs at issue here, the registration certificates constitute prima facie evidence that the copyright is owned by a plaintiff in this action. 17 U.S.C. § 209 (1976).⁶ With respect to the remaining four songs, the registration certificates have been supplemented with copies of recorded assignments that, taken together, indicate that plaintiffs in this case own copyrights in those four as well. The defendants have failed to produce any evidence to the contrary on these points. Thus, originality, authorship, compliance with statutory formalities, and ownership must all be taken as proved.

The uncontroverted deposition testimony of Mario Sabatini and affidavit of Kenneth Ayden establish that the plaintiffs' compositions were publicly performed for profit by the defendants on the dates alleged in the complaint. The defendants cannot create a factual dispute on this point simply by denying any knowledge of whether the 23 musical compositions were played on their radio station on the alleged dates. See Dawson Deposition at 121-26. Nor is it material to the issue of whether the compositions were performed for profit that WKND may have been operating at a loss. See id. at 77. The station is run for profit-making purposes, id., and the challenged broadcasts "were in aid of the general business of the defendants." Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, Inc., supra, at 855. This is more than sufficient to meet the "for profit" requirement in an infringement action. See id.

With respect to the final element of the plaintiffs' case — the absence of permission from the copyright owners or their representatives — defendant Dawson has admitted that such permission was lacking. Dawson Deposition at 66-68. It therefore appears that a case of copyright infringement has been proved as to each of the musical compositions involved and that KND Corporation, as the operator of WKND, is liable on all 23 causes of action.

Liability of Dawson

The plaintiffs also seek to fasten personal liability on Kenneth Dawson, who as vice-president of KND Corporation and full-time general manager of WKND allegedly had the capacity to prevent the proved infringements. "Although the Copyright Act does not specifically delineate what kind or degree of participation in an infringement is actionable, it has long been held that one may be liable for copyright infringement even though he has not himself performed the protected composition." Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1161-62 (2d Cir. 1971) (footnote omitted). Thus, the Second Circuit has concluded that "one may be vicariously liable if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities." Id. at 1162 (citing Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963)). And this is so "even in the absence of actual knowledge that the copyright monopoly is being impaired." Shapiro, Bernstein & Co. v. H. L. Green Co., supra, at 307.

There can be no question that under these criteria, Dawson should be held jointly liable with KND Corporation in his individual capacity. By his own admission, he had the responsibility to "oversee the day-to-day activities of the station," had "pretty much complete control over the operations of the station," and had "direct supervision" over the music director. Dawson Deposition at 30, 48, 75; see id. at 122. Moreover, as general manager of WKND, Dawson unquestionably had a direct...