Daggs v. Bass
| Decision Date | 20 November 2012 |
| Docket Number | Civil Action No. 11-30070-FDS |
| Parties | CAROL R. DAGGS, Plaintiff, v. ANTHONY BASS and COMCAST OF MASSACHUSETTS II, INC., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
This is a case involving copyright infringement. Plaintiff Carol R. Daggs, proceeding pro se, brought this action against defendants Anthony Bass and Comcast of Massachusetts II, Inc. Plaintiff alleges that defendants infringed on her copyright by recording a live musical performance by her and later broadcasting it on a public-access television channel.
Daggs contends that Bass videotaped her performance of three original songs at the "Organixsoul" musical showcase in Springfield, Massachusetts, without her permission. The program was later broadcast on Comcast public-access television as part of the City Beat television program; Daggs contends that this broadcast occurred without her knowledge or consent. She seeks both compensatory and statutory damages under copyright law.
Defendant Bass has filed a motion to dismiss. Defendant Comcast and plaintiff have filed cross-motions for summary judgment.
The following facts are undisputed, unless otherwise noted.
Carol Daggs is a musical artist who sings and plays the piano under the name "Jazzage." (Compl. ¶ 1). She is a member of the American Society of Composers, Authors, and Publishers ("ASCAP"), and holds a copyright for all of her original songs. (Id.).1
On October 23, 2010, Daggs performed at the Organixsoul evening showcase at the City Place Inn and Suites in Springfield, Massachusetts. (Compl. ¶ 1). She performed three original songs: "Actions Speak Louder than Words," "Can You Dig It," and "Love Is." (Id.).
Daggs contends that she was never informed that the program was going to be recorded. (Id.).2 At the beginning of her set, she noticed a man—later identified as Tony Bass—on the far side of the room recording the show. (Id.). Following her performance, she approached him and introduced herself. (Id.). She identified herself as a member of ASCAP, and requested a courtesy copy of her set of songs. (Id.). Daggs alleges that she was never informed that the set would be broadcast on television, and that Bass never requested permission to use the recording. (Id.). Bass alleges that he informed her that he was the producer of City Beat TV on Comcast.(Mot. to Dismiss at 1). Both parties agree that he promptly sent her a DVD of the performance at no charge. (Id.).
On November 17, 2010, Daggs's performance aired on Channel 12, Comcast's public access television channel in Springfield, Massachusetts, as part of City Beat TV. (Comcast's Statement of Material Facts ("SMF") ¶ 8; Mot. to Dismiss at 1). Channel 12 is a Comcast public, educational, or governmental ("PEG") access channel. (SMF ¶ 9).
Daggs alleges that at the time, she was not aware that she would be appearing on the show. (Compl. ¶ 2). Some time later, she was informed by children in her church youth choir that they had seen her on television. (Id.). She then contacted both Bass and the producer of Organixsoul to complain about the unauthorized recording and broadcasting. (Id.).
Comcast has a blanket license agreement with ASCAP. (SMF ¶ 11). That license was in place in November 2011, when the broadcast at issue here occurred. (SMF ¶ 12). The license provides:
ASCAP grants to Licensee and Licensee accepts, for the License Period, a non-exclusive, Through-to-the-Audience, license to perform in and as part of Licensed Programming over each of Licensee's Distribution Systems within the United States, nondramatic public performances of musical compositions now or hereafter during the term hereof in the ASCAP repertory, or as to which ASCAP has or shall have the right to grant such license during the term hereof.
"Through-to-the-Audience" is defined in the agreement as the "transmission or retransmission of simultaneous or so-called 'delayed' performances of music." (Def. Mem., Ex. 2). "Licensed programming" refers to Comcast's television programming, including PEG programming. (Id.) ("Licensed Programming as used in this Agreement shall mean . . . (b)programming on public, educational, and governmental . . . access channels."). "Licensee's Distribution Systems" means all cable television distribution systems that Comcast operates. (Id.).
Plaintiff filed this action on March 18, 2011. Defendant Comcast filed an answer to the complaint on May 4, 2011. Defendant Bass initially failed to respond to the complaint, and an entry of default was entered against him on May 17, 2011. This entry of default was set aside on August 16, 2011; that same day, defendant Bass filed an answer to the complaint.
On April 17, 2012, defendant Bass filed a motion to dismiss. Fed. R. Civ. P. 12(b) states that "[a] motion asserting [failure to state a claim] must be made before pleading if a responsive pleading is allowed." Thus, defendants' motion to dismiss is untimely because it was made after his responsive pleading was filed. However, Fed. R. Civ. P. 12(c) allows for judgment on the pleading upon a motion that is made "[a]fter the pleadings are closed—but early enough not to delay trial . . . ." Judgment on the pleadings at this stage is both timely and would promote the expedient resolution of this action by obviating discovery or narrowing its scope. Accordingly, although defendant has styled his filing as a motion to dismiss, the Court will treat the motion as one for judgment on the pleadings under Rule 12(c). See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) ().
On April 18, 2012, defendant Comcast moved for summary judgment. Plaintiff cross-moved for summary judgment on May 7.
A Rule 12(c) motion for judgment on the pleadings "is treated much like a Rule 12(b)(6) motion to dismiss." Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). It differs from a Rule 12(b)(6) motion primarily because it is filed after the close of pleadings and "implicates the pleadings as a whole." Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 54-55 (1st Cir. 2006). Because a Rule 12(c) motion "calls for an assessment of the merits of the case at an embryonic stage," the court must view the facts contained in the pleadings in the light most favorable to the non-moving party and draw all reasonable inferences to his or her benefit. R.G. Financial Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006).
However, to survive a motion for judgment on the pleadings, a complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). The court will therefore grant defendants' motion for judgment on the pleadings if plaintiffs' well-pleaded facts do not "possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).
Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits 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). "Essentially, Rule 56[] mandates the entry of summary judgment 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that determination, the Court views "the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). When "a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-moving party may not simply "rest upon mere allegation or denials of his pleading," but instead must "present affirmative evidence." Id. at 256-57.
Plaintiff contends that defendants' acts infringed on her copyright. A copyright holder has the exclusive rights of reproduction, preparation of derivative works, distribution, performance, and display. See 17 U.S.C. § 106. Any act that is inconsistent with a copyright holder's exclusive rights constitutes infringement. See Guedes v. Martinez, 131 F. Supp. 2d 272, 276 (D.P.R. 2001). To prevail on a claim for copyright infringement, a plaintiff must demonstrate (1) ownership of a valid copyright and (2) copying of the elements of the work thatare original. Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir. 2005) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
A plaintiff bears the burden of establishing ownership of a valid copyright. Johnson v. Gordon, 409. F.3d 12, 17 (1st Cir. 2005). A plaintiff...
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