Dream Dealers Music v. Parker

• Decision Date: 06 May 1996
• Docket Number: Civil Action No. 95-0345-RV-M.
• Citation: 924 F. Supp. 1146
• Parties: DREAM DEALERS MUSIC, et al., Plaintiffs, v. Ellis PARKER, d/b/a Linden Radio Joint Venture, Defendant.
• Court: U.S. District Court — Southern District of Alabama

924 F. Supp. 1146

DREAM DEALERS MUSIC, et al., Plaintiffs, v. Ellis PARKER, d/b/a Linden Radio Joint Venture, Defendant.

Civil Action No. 95-0345-RV-M.

United States District Court, S.D. Alabama, Southern Division.

May 6, 1996.

COPYRIGHT MATERIAL OMITTED

James W. Gewin, Frank Galloway, III, Brantley, Arant, Rose & White, Birmingham, AL, for plaintiffs.

Ellis J. Parker, Northport, AL, Pro Se.

T. Julian Motes, and Matthew A. Vega, Mobile, AL, for Third-Party Defendant.

ORDER

VOLLMER, District Judge.

This is an action for infringement of copyright by the unauthorized public performance of four songs owned by plaintiffs by broadcast over radio station WNPT-FM in Linden, Alabama, on April 26, 1993. Plaintiffs seek the remedies provided by the United States Copyright law; specifically, injunctive relief, an award of statutory damages, costs, and reasonable attorneys's fees.

Pending before the court are plaintiffs's "motion for summary judgment as to their complaint and ... motion to dismiss defendant Ellis J. Parker's counterclaim" (tab 15; see also brief and supporting materials at tab 16), third-party defendant Lawson's "motion to dismiss third-party complaint" (tab 21; see also tab 22), defendant Parker's "motion to deny the plaintiffs's motion for summary judgment on both the plaintiffs's complaint and the defendant's counterclaim" (tab 24; see also supporting brief at tab 25), defendant/third-party plaintiff Parker's "motion in opposition to motion to dismiss third-party complaint" (tab 26), plaintiffs's "reply memorandum in support of their motion for summary judgment and to dismiss counterclaim" (tab 28), and plaintiffs's "supplemental affidavit in support of their motion for summary judgment and to dismiss counterclaims" (tab 29). The court has duly considered the foregoing matters. Having done so, the court concludes, for the following reasons, that the plaintiff's motion for summary judgment on the copyright infringement claims and on Parker's abuse of process counterclaim, and motion to dismiss the antitrust counterclaims, are due to be granted. All remaining claims (i.e., all claims asserted in the third-party complaint) shall be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c).

Background

The facts giving rise to the plaintiffs's complaint are not complex. Plaintiffs are the owners of valid copyrights in the four musical compositions at issue in this lawsuit: "Lady Soul," "Mister Magic," "Inner City Blues (Makes Me Wanna Holler)," and "Summertime." As such, plaintiffs also are members of the American Society of Composers, Authors, and Publishers ("ASCAP"), an unincorporated membership association comprised of more than 60,000 writers and publishers of musical compositions. ASCAP operates as a performing rights licensing organization. Each plaintiff in this action has granted ASCAP a nonexclusive license to authorize the non-dramatic public performances of the members's copyrighted musical compositions.

Defendant Ellis J. Parker ("Parker"), a licensed attorney, is a citizen of the State of Alabama and a resident of this judicial district. In as early as 1991, Parker was engaged in the business of operating a commercial radio station in Tuscaloosa, Alabama, known by the call letters WNPT-AM, through WNAR, Inc., a corporation of which Parker is the sole shareholder, CEO, and president.

In early 1991, Parker obtained FCC approval to operate a second radio station, WNPT-FM. He began operating that station in March 1991, in Linden, Alabama, doing business as "Linden Radio Station Joint Venture."

For at least a portion of the time Parker owned and operated WNPT-AM, the station was duly licensed to broadcast musical compositions in the ASCAP repertoire. Parker sold the station to the third-party defendant, James W. Lawson ("Lawson") in early 1993. At the time of the sale, Parker owed license fees of approximately $3,400 to ASCAP. According to Parker, as part of the sales agreement, Lawson contractually agreed to pay those fees.

Parker did not obtain an ASCAP license for WNPT-FM when he began operating that station. Beginning in March 1991, when Parker established the station, and continuing for more than two years, ASCAP attempted without success to persuade Parker to enter into a license agreement which would have enabled him lawfully to perform ASCAP's music as part of the programming broadcast over the station. During that period, ASCAP considered WNPT-FM to be de facto licensed. It attempted to collect license fees for the period of the de facto license and to encourage Parker to enter into a prospective license agreement.

On April 2, 1993, following ASCAP's repeated attempts to collect license fees and a prospective license agreement from Parker, ASCAP terminated Parker's de facto license agreement for default. Thereafter, ASCAP repeatedly offered to reinstate the terminated license if Parker would pay the license fees owed for the period of the de facto license. ASCAP's efforts were unsuccessful.

Once it became clear that Parker would not accept ASCAP's license offers, ASCAP hired an independent investigator, Dorothy Glaze ("Glaze"), to make tape recordings of the station's broadcasts. Glaze made tape recordings of WNPT-FM's broadcasts on April 26, 1993, between approximately 11:30 a.m. and 4:00 p.m., and 6:30 p.m. and 9:30 p.m., and on April 27, 1993, between approximately 6:30 a.m. and 11:00 a.m., at the Holiday Inn in Tuscaloosa, Alabama. The four songs at issue in this action were recorded by Glaze from WNPT-FM's April 26, 1993, radio broadcast. It is undisputed that Parker owned WNPT-FM, and that the station did not have an ASCAP license, on that date. It also is undisputed that Parker did not have permission from the individual plaintiffs or their agents to perform those copyrighted musical compositions on that date.

The plaintiffs filed this copyright infringement action on May 2, 1995. Around that time, they made repeated attempts to settle the matter. At one point, ASCAP, offered to grant Parker a prospective license for WNPT-FM if Parker would pay all of the license fees he owed during the de facto license period for WNPT-FM (from March 1991, to April 2, 1993: $4,823.88) and the license fees he owed for WNPT-AM for the period of time that that station was unlicensed prior to its sale (approximately $3,400). Parker refused that offer.

Instead, in late February 1995, Parker paid ASCAP only $4,823.88, the amount he owed for the de facto license period for WNPT-FM. The payment was made with the clear understanding by ASCAP, unequivocally communicated to Parker, that it would not resolve the copyright infringement claims made the basis of this suit. Parker did not pay, and, to date, has not paid, license fees for the period of time covering the date of those alleged infringements.¹

ASCAP offered to license WNPT-FM prospectively from April 2, 1993, upon Parker's payment of applicable license fees. That offer was not conditioned on Parker's payment of outstanding license fees for WNPT-AM; however, it was made with the clear understanding that those fees would still be due and owing and with the further understanding that the purchase of the prospective license would not resolve the claims made the basis of this suit.

Since this suit was filed, Parker has continued to broadcast ASCAP musical compositions over WNPT-FM, without a license or other authorization. If WNPT-FM had been properly licensed by ASCAP through February 29, 1996, Parker would have owed ASCAP more than $7,000 in license fees.

Discussion²

A. Plaintiffs's Copyright Infringement Claims

1. Standard of Review on Motion for Summary Judgment

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Rice v. Branigar Organization, Inc., 922 F.2d 788, 790 (11th Cir.1991). The clear language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery, and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The party moving for summary judgment bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (Cox, J.); see Mercantile Bank & Trust, Ltd. v. Fidelity & Deposit Co., 750 F.2d 838 (11th Cir.1985). At all times, however, the court must view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences and resolving all reasonable doubts in its, her, or his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir.1987). The district court cannot resolve factual disputes by weighing conflicting evidence. Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir.1986), reh'g den., 815 F.2d 66 (1987). If reasonable minds might differ on the inferences arising from undisputed facts, then the court must deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.1992) (citing Mercantile Bank & Trust, 750 F.2d at 841).

With respect to issues on which the nonmoving party would bear the burden of proof at trial,...