Broad. Music, Inc. v. Prana Hospitality, Inc.

• Decision Date: 21 January 2016
• Docket Number: 15 Civ. 1987 (PAE)
• Citation: 158 F.Supp.3d 184
• Parties: Broadcast Music, Inc.; MJ Publishing Trust d/b/a Mijac Music; Beechwood Music Corporation; and Sony/ATV Latin Music Publishing LLC, Plaintiffs, v. Prana Hospitality, Inc. d/b/a Pranna ; Rajiv Sharma and Payal Sharma, each individually, Defendants.
• Court: U.S. District Court — Southern District of New York

158 F.Supp.3d 184

Broadcast Music, Inc.; MJ Publishing Trust d/b/a Mijac Music; Beechwood Music Corporation; and Sony/ATV Latin Music Publishing LLC, Plaintiffs,

v.Prana Hospitality, Inc. d/b/a Pranna ; Rajiv Sharma and Payal Sharma, each individually, Defendants.

15 Civ. 1987 (PAE)

United States District Court, S.D. New York.

Signed January 21, 2016

Jonathon Brugh Lower, Mark S. Sidoti, Gibbons P.C., New York, NY, for Plaintiffs.

Stephen Z. Starr, Starr & Starr, PLLC, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiffs Broadcast Music, Inc. (“BMI”), MJ Publishing Trust, Beechwood Music Corporation, and Sony/ATV Latin Music Publishing LLC bring this action for copyright infringement against defendants Prana Hospitality, Inc. (“Prana”), Rajiv Sharma, and Payal Sharma. Plaintiffs claim that defendants, the owners of a New York City restaurant/bar, violated the Copyright Act, 17 U.S.C. §§ 101 et seq., and willfully infringed their copyrights, by publicly performing three of plaintiffs' copyrighted musical compositions without authorization.

Plaintiffs now move for summary judgment on their claims, and seek an injunction prohibiting defendants from further infringing any copyrighted musical compositions licensed by BMI. Plaintiffs also request an award of statutory damages under 17 U.S.C. § 504(c), as well as attorneys' fees and costs under 17 U.S.C. § 505.

For the reasons that follow, plaintiffs' motion for summary judgment is granted. The Court also grants plaintiffs' motions for an injunction, attorneys' fees, and costs, and awards statutory damages.

I. Background

A. Facts¹

BMI is a performing rights society that licenses the right to publicly perform a repertoire of 10.5 million copyrighted musical works. Lloyd Decl. ¶¶ 3, 5. BMI acquires non-exclusive public performance rights through agreements with copyright owners, such as composers and music publishing companies. Id. ¶ 2. BMI, in turn, issues “blanket license agreements” to music users, such as broadcasters and the owners and operators of restaurants and night clubs, which permit them to host public performances of any of the works in BMI's repertoire. Id.

The other plaintiffs are the copyright owners of the musical compositions that are the subject of this lawsuit: “Suavemente,” “Billie Jean,” and “We Will Rock You.” Pl. 56.1, ¶¶ 17–19. BMI has acquired public performance rights from these plaintiffs for these songs. Id. ¶ 20.

Prana is a New York corporation that operates and maintains an establishment, Pranna, located at 79 Madison Avenue in New York City, which serves as a restaurant, bar, and lounge. Pl. 56.1, ¶ 3. At all relevant times, Rajiv Sharma has been an owner and the Chief Executive Officer of Prana, id. ¶ 9, and Payal Sharma has been an owner and officer of Prana, id. ¶ 10.

At some point before September 2012, BMI learned that Pranna was hosting public musical performances by DJs without a license from BMI or permission from the copyright owners whose works were being performed. Mullaney Decl. ¶ 3. On September 13, 2012, BMI sent a letter to Pranna advising defendants of their obligations under the Copyright Act, offering to enter into a blanket license agreement with them, and enclosing a license agreement and fee schedule. Id. BMI received no response. Id. In October 2012, BMI sent defendants additional letters of the same nature. Id. ¶ 4. On November 19, 2012, BMI received an email from Pranna's business manager, Grace Tayeh, stating that Pranna “already [had] licensing through the music provider.” Id. ¶ 5; id. Ex. A. A BMI representative replied to Tayeh later that day, informing her that any license possessed by Pranna did not cover DJ performances. Id. ¶ 5; id. Ex. D, at 8.

Between September 2012 and October 2014, BMI sent defendants a total of 48 letters via email, FedEx, and first class mail, initially offering to enter into a license agreement with defendants, and later directing defendants to cease and desist from further public performances of BMI-licensed music. Pl. 56.1, ¶ 4.² Additionally, BMI called Pranna 42 times, and BMI licensing personnel visited Pranna four times and spoke to persons associated with Pranna's operations on multiple occasions. Id. ¶ 5. Despite these overtures, defendants did not enter into a license with BMI or the other plaintiffs. Id. ¶ 6.

On May 17, 2014 and October 11, 2014³ , BMI sent music investigator Timothy Braunscheidel to Pranna to make audio recordings and written reports of the music being publicly performed there on those nights. Mullaney Decl. ¶¶ 15, 17; see id. Exs. B–C.⁴ BMI later authorized John Davis, a “performance identification employee,” to review the recordings for BMI-licensed works. Mullaney Decl. ¶ 17; see id. Ex. C. Braunscheidel's and Davis's reports reveal that on May 17, 2014, “Suavemente” was performed by a DJ while Pranna was open to the public, and on October 11, 2014, “Suavemente,” “Billie Jean,” and “We Will Rock You” were publicly performed there. Pl. 56.1, ¶¶ 12–13. Pranna was not licensed by BMI or any other plaintiffs to publicly perform any of these musical compositions on those dates. Id. ¶ 14. On May 20, 2014, October 14, 2014, and October 21, 2014, BMI sent defendants letters by FedEx and first class mail advising them of the investigations. Mullaney Decl. ¶¶ 16, 18–19.

To date, Pranna has not obtained a license from any plaintiff, and continues to permit public performances of musical compositions at its establishment, Pl. 56.1, ¶¶ 15–16, including, plaintiffs allege, songs licensed by BMI, Mullaney Decl. ¶ 24.

B. Procedural History

On March 17, 2015, plaintiffs filed a complaint, bringing three claims of copyright infringement against defendants. Dkt. 1. On May 21, 2015, defendants answered. Dkt. 11.

On July 24, 2015, plaintiffs served defendants with plaintiffs' first set of requests for admission, interrogatories, and requests for production of documents. Pl. 56.1, ¶ 1; see Lower Decl., Exs. A–C. On August 14, 2015, defendants served plaintiffs with defendants' first set of interrogatories and requests for production of documents. Pl. 56.1, ¶ 2. On September 16, 2015, plaintiffs responded to defendants' discovery requests. Id. Discovery closed on October 16, 2015. Dkt. 15. To date, defendants have not responded to plaintiffs' discovery requests. Pl. 56.1, ¶ 1.⁵

On December 9, 2015, plaintiffs filed a motion for summary judgment, Dkt. 21, as well as a memorandum of law in support, Dkt. 22 (“Pl. Br.”). Plaintiffs also filed a Rule 56.1 Statement, Pl. 56.1; a declaration by plaintiffs' counsel, Lower Decl.; a declaration by BMI's vice president for sales and licensing, Mullaney Decl.; and a declaration by BMI's assistant vice president of legal affairs, Lloyd Decl. On December 16, 2015, defendants filed a brief in opposition. Dkt. 27 (“Defs. Br.”). On December 22, 2015, plaintiffs replied, Dkt. 28 (“Pl. Reply Br.”), and filed a supplemental declaration by plaintiffs' counsel, Dkt. 29 (“Lower Supp. Decl.”).

II. Legal Standards Applicable to Summary Judgment Motions

To prevail on a motion for summary judgment, the movant must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A) ; see also Wright v. Goord , 554 F.3d 255, 266 (2d Cir.2009). “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines , 593 F.3d 159, 166 (2d Cir.2010) (internal quotation marks and citation omitted). “Only disputes over facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian , 680 F.3d 234, 236 (2d Cir.2012) (citing Terry v. Ashcroft , 336 F.3d 128, 137 (2d Cir.2003) ).

III. Discussion

A. Liability for Copyright Infringement

Plaintiffs argue that they are entitled to summary judgment on each claim of copyright infringement because the undisputed facts show that defendants permitted unauthorized public performances at Pranna of three musical compositions within BMI's repertoire. Plaintiffs are correct.

1. Plaintiffs Have Established That They Are Entitled to Judgment on Their Copyright Claims

The Copyright Act gives the owner of a copyright the exclusive right to perform, or to authorize others to perform, the copyrighted work. 17 U.S.C. § 106(4). A public performance made without the requisite license or authorization from the copyright owner constitutes an infringement of the work. Broad. Music, Inc. v. R Bar of Manhattan, Inc. , 919 F.Supp. 656, 659 (S.D.N.Y.1996) (citing Shapiro, Bernstein & Co. v. H.L. Green Co. , 316 F.2d 304, 307 (2d Cir.1963) ).

To prevail on a claim of copyright infringement based on an unauthorized public performance, a plaintiff must establish: (1) originality and authorship; (2) compliance with all formalities of the Copyright Act; (3) plaintiff's ownership of the copyrights at issue; (4) defendant's public performance of the compositions for profit; and (5) defendant's lack of authorization for the public performance. Broad. Music, Inc. v. 315 W. 44th St. Rest. Corp. , No. 93 Civ. 8182 (MBM), 1995 WL 408399, at *2 (S.D.N.Y. July 11, 1995) (collecting cases). Here, plaintiffs have satisfied each of these...