Broad. Music, Inc. v. McDade & Sons, Inc.

• Decision Date: 06 March 2013
• Docket Number: No. CV–11–1980–PHX–BSB.,CV–11–1980–PHX–BSB.
• Citation: 928 F.Supp.2d 1120
• Parties: BROADCAST MUSIC, INC.; Sony/ATV Songs LLC d/b/a Sony/ATV Acuff Rose Music; Screen Gems–EMI Music, Inc; Songpainter Music; Tall Girl Music; Sony/ATV Songs LLC d/b/a Sony/ATV Tree Publishing; Universal–Songs of Polygram International, Inc; Warner–Tamerlane Publishing Corp.; Believus Or Not Music; Glad Music Co; Paul Simon Music; Logrhythm Music; Universal–Millhouse Music, a division of Magna Sound Corporation; Bar None Music; Central Songs, a division of Beechwood Music Corporation, Plaintiffs, v. McDADE & SONS, INC., d/b/a Norton's Country Corner; McDade Management, LLC d/b/a Norton's Country Corner; Nancy McDade, individually; and Jason McDade, individually, Defendants.
• Court: U.S. District Court — District of Arizona

928 F.Supp.2d 1120

BROADCAST MUSIC, INC.; Sony/ATV Songs LLC d/b/a Sony/ATV Acuff Rose Music; Screen Gems–EMI Music, Inc; Songpainter Music; Tall Girl Music; Sony/ATV Songs LLC d/b/a Sony/ATV Tree Publishing; Universal–Songs of Polygram International, Inc; Warner–Tamerlane Publishing Corp.; Believus Or Not Music; Glad Music Co; Paul Simon Music; Logrhythm Music; Universal–Millhouse Music, a division of Magna Sound Corporation; Bar None Music; Central Songs, a division of Beechwood Music Corporation, Plaintiffs,

v.McDADE & SONS, INC., d/b/a Norton's Country Corner; McDade Management, LLC d/b/a Norton's Country Corner; Nancy McDade, individually; and Jason McDade, individually, Defendants.

No. CV–11–1980–PHX–BSB.

United States District Court, D. Arizona.

March 6, 2013.

Mark M. Deatherage, Gallagher & Kennedy PA, Phoenix, AZ, for Plaintiffs.

Nancy Elizabeth McDade, Law Office of Nancy McDade, Queen Creek, AZ, for Defendants.

ORDER

BRIDGET S. BADE, United States Magistrate Judge.

In this matter, Plaintiffs assert claims of copyright infringement against Defendants. Plaintiffs allege that Defendants infringed copyrights to thirteen musical compositions by the unauthorized public performance of these compositions at Norton's Country Corner (Norton's) in Queen Creek, Arizona, on June 10 and 11, 2011. (Doc. 29.) Plaintiffs have filed a motion for summary judgment and a supporting statement of facts on their claims of copyright infringement. (Docs. 39 and 40.) Defendants have filed a response and a supporting statement of facts opposing Plaintiffs' motion. (Docs. 56 and 57.) Plaintiffs have filed a reply, a response and objections to Defendants' statement of facts, and a motion to strike.¹ (Docs. 60 and 62.) For the reasons set forth below, the Court grants Plaintiffs' Motion for Summary Judgment and enters a permanent injunction enjoining Defendants from further infringement of Plaintiffs' thirteen copyrighted musical compositions and the musical compositions to which Plaintiff Broadcast Music, Inc. (BMI) holds the rights to enter licensing agreements.²

I. Factual and Procedural Background

On March 8, 2012, Plaintiffs filed a First Amended Complaint against Defendants McDade & Sons, Inc., d/b/a Norton's Country Corner, McDade Management, LLC d/b/a Norton's Country Corner, Nancy McDade, and Jason McDade alleging claims of copyright infringement. (Doc. 29.) Plaintiffs allege that these Defendants owned, operated and controlled Norton's in June 2011, at the time of the public performance of the thirteen musical compositions at issue in this matter and, therefore, are liable for copyright infringement. ( Id.)

Plaintiffs allege that they own the copyrights to, or the rights to license the performance of, the thirteen musical compositions at issue and seek the following remedies provided by the Copyright Act, 17 U.S.C. §§ 502, 504, and 505: (1) an injunction prohibiting further infringing performances of any copyrighted musical compositions in the BMI repertoire; (2) statutory damages in the amount of not less than $3,000 for each of the thirteen copyright infringements; (3) costs and reasonable attorneys' fees; and (4) interest from the date of judgment. (Docs. 29, 39.)

Plaintiff BMI is a “performing rights society,” which is a nonprofit organization that licenses the right to publicly perform copyrighted musical compositions on behalf of its members and collects royalties whenever that music is performed. (Doc. 40 at ¶ 1, Ex. 1 at ¶ 3) ³; see17 U.S.C. § 101 (“A ‘performing rights society’ is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), [BMI], and SESAC, Inc.”). The collection of musical compositions that BMI licenses is known as the BMI repertoire. (Doc. 40 at ¶ 3.) The other Plaintiffs are the copyright owners of the musical compositions that are the subject of this matter. (Doc. 40 at ¶ 2, Ex. 1 at ¶ 4.)

Through agreements with copyright owners, such as the individually named Plaintiffs, BMI acquires non-exclusive public performance rights. BMI has acquired such rights from each of the individually named Plaintiffs in this action. (Doc. 40 at ¶ 3; Ex. 1 at ¶ 2.) In turn, BMI grants music users such as broadcasters, and owners and operators of concert halls, restaurants, nightclubs, and hotels the right to publicly perform any of the works in the BMI repertoire through “blanket license agreements.” (Doc. 4 at ¶ 4.) The thirteen songs that are the subject of this action are registered with the Copyright Office and are part of BMI's repertoire. (Doc. 40 at ¶ 17, Ex. 1 at ¶¶ 4–5, Attachment A.)

At all times relevant to this matter, Defendant McDade & Sons, Inc. owned and operated Norton's, had the right and ability to direct and control activities at Norton's, and had a direct financial interest in Norton's. (Doc. 40 at ¶ 6; Doc. 40 at Ex. 4, Resp. to Interrog. 1–5.) At all times relevant to this matter, Defendant Nancy McDade owned 100% of McDade & Sons, Inc., and was its sole officer and director; she had an ownership interest in Norton's, the right and ability to direct and control activities at Norton's, and the right to supervise its employees. (Doc. 40 at Ex. 4, Resp. to Interrog. 1–5; Doc. 57–1 at ¶¶ 2 and 3.)

Defendants do not have a license from BMI to publicly perform at Norton's any songs within the BMI repertoire. (Doc. 40 at ¶ 18, Ex. 2 at ¶¶ 4, 13, and 19, Ex. 3, Resp. to Req. for Admission 27.) Between February 2010 and May 2011, BMI repeatedly informed Defendants of the need to obtain permission for public performances of copyrighted music within BMI's repertoire. (Doc. 40 at ¶ 10.) BMI conveyed this information through approximately twenty-nine letters, fifty-three telephone contacts, and at least one in-person visit. ( Id.) BMI offered to enter into a blanket license agreement with Defendants, but Defendants declined to do so. ( Id.) In March, April, and May 2011, BMI sent cease and desist letters instructing Defendants to cease public performance of music within the BMI repertoire. (Doc. 40 at ¶ 11.)

On June 10, 2011, BMI sent investigator James Snyder to visit Norton's and prepare a report indicating whether copyright infringement was occurring there. (Doc. 40 at ¶ 14.) During his visit, Snyder made an audio recording and later created a certified infringement report of the BMI-licensed songs played at Norton's on June 10 and 11, 2011.⁴ (Doc. 40 at ¶ 14, Ex. 2 at ¶¶ 14–15, and Exs. A and C.) In his report, Snyder personally identified eight musical compositions that were performed at Norton's—“All My Ex's Live in Texas,” “Baby Don't Get Hooked on Me,” “Boot Scoot Boogie” a/k/a “Boot Scootin' Boogie,” “Brown Eyed Girl,” “Race is On” a/k/a “The Race is On,” “You Can Call Me Al,” “Shake” a/k/a “The Shake,” and “Ring of Fire.” (Doc. 40, Ex. 2 at Ex. A.)

After Snyder submitted his report and the audio recording to BMI, Joannah Carr, a BMI Performance Identification employee, reviewed the audio recording and confirmed the eight musical compositions that Snyder had identified, and she identified five additional musical compositions on the audio recording—“One Step Forward,” “Only Daddy That'll Walk the Line” a/k/a “The Only Daddy That'll Walk the Line,” “Betty's Bein' Bad,” “Eighteen Wheels and a Dozen Roses,” and “Fireman” a/k/a “The Fireman.” (Doc. 40 at Ex. 2 at Ex. A.)

After BMI confirmed that all thirteen songs are part of its repertoire, on June 27 and June 29, 2011, BMI sent letters to Defendants notifying them of the investigation and that BMI believed copyright infringement had occurred at Norton's on June 10 and 11, 2011. (Doc. 40 at ¶ 19, Ex. 2 at ¶ 16 and Ex. B.) Defendants did not respond. ( Id.)

II. Summary Judgment Standard

Federal Rule of Civil Procedure 56 authorizes the court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” ⁵Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A burden shifting analysis applies to motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. ( In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir.2010).

The moving party bears the initial burden of informing the court of the basis for its motion, and identifying the portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548);see alsoFed.R.Civ.P. 56 advisory committee's note (2010 amendments) (recognizing that “a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact”).

If the moving party meets its initial burden, the opposing party must establish the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To avoid summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, meaning it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th...