Chess Music, Inc. v. Tadych
| Decision Date | 16 February 1979 |
| Docket Number | No. 78-C-278.,78-C-278. |
| Citation | 467 F. Supp. 819 |
| Parties | CHESS MUSIC, INC., Casa David, WB Music Corp., Cherry Lane Music Co., United Artists Music Co., Inc., Plaintiffs, v. Albert TADYCH, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Frank J. Daily, Quarles & Brady, Milwaukee, Wis., for plaintiffs.
Albert Tadych, pro se.
This is a civil action for copyright infringement under Title 17 of the United States Code. Plaintiffs' complaint alleges that they are the owners of four musical compositions and further that infringing performances of these compositions occurred at defendant's establishment, known as the Showboat Lounge, on February 25 and 26, 1978 in Milwaukee, Wisconsin. Plaintiffs seek the following remedies under the Copyright Act, 17 U.S.C. §§ 504(c)(1), 502(a) and 505: an injunction prohibiting further infringing performances of plaintiffs' musical compositions; statutory damages for past infringements in the amount of $250.00 per cause of action (plaintiffs assert one cause of action for each of the four compositions); and reasonable attorney's fees and costs incurred by plaintiffs in bringing this action.
Subsequent to defendant's answer, plaintiffs served a request for admissions on defendant. Defendant never responded to the request and, pursuant to Rule 36 of the Federal Rules of Civil Procedure, defendant is deemed to have admitted the allegations in the request as true. Plaintiffs have now moved for summary judgment supporting such motion with a brief, several affidavits, and defendant's admissions by non-response to the request for admissions. Defendant has filed neither a brief in response nor any affidavits opposing plaintiffs' motion for summary judgment.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings, affidavits, depositions and other papers on file indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). Furthermore, under Rule 56(e) of the Federal Rules of Civil Procedure, a party cannot rest on the allegations of his pleadings, and thus a court can enter summary judgment, if appropriate, when the opposing party fails to respond with facts supporting his complaint.
In order to clarify the facts in this case, a review of the facts surrounding the alleged infringement is necessary. Each plaintiff in this action is a music publisher and a member of the American Society of Composers, Authors and Publishers ("ASCAP"). ASCAP was granted a non-exclusive right to license public performances for profit of the plaintiffs' copyrighted musical compositions. On behalf of its members, including plaintiffs, ASCAP licenses numerous broadcasters, restaurants, taverns and the like whose owners desire to perform publicly copyrighted musical compositions in the ASCAP repertory.
When a user declines to obtain a license agreement and instead chooses to perform the musical compositions without permission from the copyright owners, the user becomes an infringer under the Copyright Act, specifically 17 U.S.C. §§ 106 and 501. In this action, defendant is alleged to have committed such an infringement by giving public performances on defendant's premises for profit of the four compositions without permission. See, 17 U.S.C. § 501(a).
Effective January 1, 1978, the new Copyright Act provides that "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 . . . is an infringer of the copyright." As indicated earlier, the alleged infringements occurred in February of 1978 and thus are governed by the new Copyright Act. Before reviewing whether summary judgment is appropriate here, the Court must first determine what a party must show to establish a claim for copyright infringement. Once that is set forth, then a determination of whether plaintiffs have established their claim for relief can be made.
In Shapiro, Bernstein & Co. v. Log Cabin Club Assoc., 365 F.Supp. 325, 328 fn. 4 (3 N.D.W.Va.1973), the court described the...
To continue reading
Request your trial
-
BellSouth Adv. & Pub. v. Donnelley Inf. Pub.
...Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 200 U.S. P.Q. 65 (5th Cir.1978); Chess Music, Inc., v. Tadych, 467 F.Supp. 819, 204 U.S.P.Q. 516, 518 (E.D.Wis.1979); see also Midway Mfg. Co. v. Bandai-American, Inc., 546 F.Supp. 125, 216 U.S.P.Q. 812, 822 (D.N.J.1982); Knickerboc......
-
Boz Scaggs Music v. KND Corp.
...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 copy......
-
Broadcast Music, Inc. v. Moor-Law, Inc.
...that the songs were performed as alleged, and that such performance was without proper authorization. See, e. g., Chess Music, Inc. v. Tadych, 467 F.Supp. 819 (E.D.Wis.1979); BMI v. Gary W. Marshall, Civ. Action No. 77-40087 No factual dispute exists as to four of these five elements. Plain......
-
Fourth Floor Music, Inc. v. Der Place, Inc.
...Spatz, 492 F.Supp. 836, 838 (W.D.Wis.1980); Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 912 (D.Conn.1980); Chess Music, Inc. v. Tadych, 467 F.Supp. 819, 821 (E.D.Wis.1979); Shapiro, Bernstein & Co. v. "The Log Cabin Club Association," 365 F.Supp. 325, 328 n. 4 (N.D. W.Va.1973). See KECA......