Broadcast Music, Inc. v. R Bar of Manhattan, Inc.

• Decision Date: 01 March 1996
• Docket Number: No. 94 Civ. 6650(HB).,94 Civ. 6650(HB).
• Citation: 919 F. Supp. 656
• Parties: BROADCAST MUSIC, INC.; Abcko Music, Inc.; Audigram Music, A Division of Audigram, Inc.; Unichappell Music, Inc.; and Dynatone Publishing Company, Plaintiffs, v. R BAR OF MANHATTAN, INC., d/b/a R Bar and Joseph Ruggiero, Individually, Defendants.
• Court: U.S. District Court — Southern District of New York

919 F. Supp. 656

BROADCAST MUSIC, INC.; Abcko Music, Inc.; Audigram Music, A Division of Audigram, Inc.; Unichappell Music, Inc.; and Dynatone Publishing Company, Plaintiffs, v. R BAR OF MANHATTAN, INC., d/b/a R Bar and Joseph Ruggiero, Individually, Defendants.

No. 94 Civ. 6650(HB).

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

March 1, 1996.

COPYRIGHT MATERIAL OMITTED

Robert Boatti, New York City, for plaintiffs.

Joseph Ruggiero, New York City, Pro Se.

ORDER

BAER, District Judge:

I referred this action to Magistrate Judge Sharon E. Grubin for a determination of appropriate injunctive relief, damages, interest, attorney's fees and costs after entry of a default judgment against defendants. Magistrate Judge Grubin issued an extensive Report and Recommendation dated February 6, 1996 recommending an award of $12,000 in statutory damages, attorney's fees and costs of $865, and prejudgment interest of $1,426.52 plus $1.98 per day from February 28, 1996 to the date of this Order, and the entry of a permanent injunction.

The Report advised the parties of their obligation to file timely objections under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 6(a), 6(e), and 72(b). To date, no objections have been filed and I have found no clear error in the Report and Recommendation of Magistrate Judge Grubin.

Therefore, judgment is hereby entered in accordance with Magistrate Judge Grubin's recommendations.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE HAROLD BAER, JR.

GRUBIN, United States Magistrate Judge:

This case, brought pursuant to the Copyright Act, 17 U.S.C. §§ 101 et seq., was referred to me for a determination of damages, interest, attorney's fees and costs after entry of a default judgment against R Bar of Manhattan, Inc. and Joseph Ruggiero, upon their failure to appear herein. Plaintiffs have submitted affidavits and documentary evidence on damages. The defendants did not make any submissions or contact the court at any time, despite notice and opportunity to do so. For the reasons in my proposed findings of fact and conclusions of law set forth below, I recommend entry of awards of $12,000 in statutory damages, $1,426.52 in prejudgment interest and $865 in attorney's fees and costs, as well as a permanent injunction prohibiting defendants from unauthorized public performances of any copyrighted compositions licensed through plaintiff Broadcast Music, Inc. ("BMI").

A default judgment entered on well-pleaded allegations of a complaint establishes a defendant's liability. The allegations are to be accepted as true, except those relating to the amount of damages. Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir.1995); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974); Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 69-70 (2d Cir.1971), rev'd on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973).

The five plaintiffs are four music publishing companies, who are the copyright owners in eight musical compositions involved herein, and BMI, who has been granted the right to license the public performance rights in those compositions. (Complaint, ¶¶ 3, 4, 11.) Each of the eight compositions was publicly performed without permission from plaintiffs at R Bar, an establishment located at 273 Church Street that is owned and operated by defendants. (Id. ¶¶ 5, 13; Declaration of Ross Schneider, June 26, 1995, at 1-2.)

Upon learning that musical works licensed by BMI were being performed at R Bar, BMI wrote the defendants on November 25, 1992 of the need to obtain permission for performances of copyrighted music and sent them a license agreement to enter into. Having received no response, BMI sent another letter to defendants on December 23, 1992, urging execution of the license agreement. Again, there was no response. Thereafter, BMI personnel sent additional letters and agreements to defendants, each time receiving no response, telephoned the defendants on over 20 occasions and spoke to persons associated with the operation of the R Bar, and once visited the establishment and left a license agreement there. Although defendants failed to enter into an agreement at any time, they continued to provide public performances of BMI-licensed works to their patrons. (Declaration of Lawrence E. Stevens, June 30, 1995, at 1-4.)

Thereafter, on September 21 and October 8, 1993 a BMI investigator was present at R Bar when the eight musical compositions in suit were performed. The compositions are: "Honky Tonk Woman" by Mick Jagger and Keith Richard, performed there by live entertainers on September 21, 1993; and "Cocaine" by J.J. Cale, "Wonderful Tonight" and "Next Time You See Her" by Eric Clapton, "Lay Down Sally" by Eric Clapton, Marcy Levy and George Terry, "Core" by Eric Clapton and Marcy Levy, "Peaches and Diesel" by Eric Clapton and Albhy Galuten, and "Papa's Got A Brand New Bag" by James Brown, performed there by means of recordings on October 8, 1993. (Complaint ¶ 13; Schneider Decl. at 1-2.) On October 15, 1993 BMI sent another letter to the defendants, advising them that suit for copyright infringement would ensue if they failed to execute a license agreement. Again, there was no response. This action was commenced on September 14, 1994.

These performances, made without a license or authorization from the copyright owners, constitute copyright infringement in the works. See 17 U.S.C. §§ 106(4), 501(a); Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.1963). Plaintiffs seek the following relief: (1) a permanent injunction against further infringing public performances of plaintiffs' copyrighted works; (2) statutory damages pursuant to 17 U.S.C. § 504(c) of $2,000 for each work infringed; (3) attorney's fees; and (4) other costs.

Injunctive Relief

The uncontroverted allegations in the complaint as supplemented by the testimony of BMI's investigator establish that defendants infringed plaintiffs' copyrights despite knowledge of those copyrights and have continued to have copyrighted music performed at R Bar without authorization. Plaintiffs therefore should be granted a permanent injunction against unauthorized public performances of any copyrighted compositions licensed through BMI. 17 U.S.C. § 502(a). See, e.g., Sailor Music, v. IML Corp., 867 F.Supp. 565, 569 (E.D.Mich.1994); Jobete Music Co. v. Hampton, 864 F.Supp. 7, 9 (S.D.Miss.1994); Marvin Music Co. v. BHC Ltd. Partnership, 830 F.Supp. 651, 655 (D.Mass.1993); Pedrosillo Music, Inc. v. Radio Musical, Inc., 815 F.Supp. 511, 516 (D.P.R.1993).

Statutory Damages

The Copyright Act provides a copyright owner with the option of recovering (1) the copyright owner's actual damages and any additional profits of the infringer or (2) statutory damages, often referred to as "in lieu" damages, of between $500 and $20,000 per infringed work. 17 U.S.C. §§ 504(a), 504(c)(1). If the second option is chosen, the award of statutory damages may be increased up to a maximum of $100,000 if infringement was committed willfully. 17 U.S.C. § 504(c)(2). Plaintiffs here have elected to recover statutory damages.¹ "The broad discretionary power given courts to make such an award serves the dual purposes of the Copyright Act: to compensate copyright owners and to provide a deterrent for would-be infringers." Lauratex Textile Corp. v. Allton Knitting Mills Inc., 519 F.Supp. 730, 733 (S.D.N.Y.1981). See F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233, 73 S.Ct. 222, 225, 97 L.Ed. 276 (1952) ("Even for uninjurious and unprofitable invasions of copyright the court may, if it deems just, impose a liability within statutory limits to sanction and vindicate the statutory policy of discouraging wrongful conduct."); N.A.S. Import, Corp. v. Chenson Enterprises, Inc., 968 F.2d 250, 252 (2d Cir. 1992); Schwartz-Liebman Textiles v. Last Exit Corp., 815 F.Supp. 106, 108 (S.D.N.Y. 1992); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522, 1545 (S.D.N.Y.1991). Relevant factors in determining the amount of statutory damages include "the expenses saved and profits reaped by the defendants in connection with the infringements, the revenues lost by the plaintiffs as a result of the defendants' conduct, and the infringers' state of mind." Golden Torch Music Corp. v. Pier III Cafe, Inc., 684 F.Supp. 772, 774 (D.Conn. 1988). In similar cases involving unlicensed public performances of copyrighted music, courts have held that, in order to put such infringers "on notice that it costs less to obey the copyright laws than to violate them," Rodgers v. Eighty Four Lumber Co., 623 F.Supp. 889, 892 (W.D.Pa.1985) (quotation omitted), a statutory damage award should significantly exceed the amount of unpaid license fees. See, e.g., Broadcast Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 488 (7th Cir.1995) (upholding award of $140,000 in statutory damages where defendants avoided paying about $75,000 in Copyright Office registration fees); Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1227, 1229-30 (7th Cir.1991) (upholding an award of $40,000 in statutory damages that was approximately three times what ASCAP license fees would have been had defendant been licensed by ASCAP); Sailor Music v. IML Corp., 867 F.Supp. at 570 (inferring from other cases a "de facto treble rule" according to which statutory damages should be "three times the amount of a properly purchased license for each infringement"); Major Bob Music v. Stubbs, 851 F.Supp. 475, 480-81 (S.D.Ga.1994) (awarding $6,000 in statutory damages, i.e., approximately three times what ASCAP license fees would have been); Broadcast Music, Inc. v. Melody Fair Enterprises, Inc., Nos. CIV-89-70C, CIV-89-1223C, 1991 Copyright L.Dec. (CCH) ¶ 26,688, 1990 U.S.Dist. Lexis 19322 at *3, 1990 WL 284743 at *4 (W.D.N.Y.1990) (awarding statutory damages of $42,000 and $70,000 where BMI license fees would have been...