Fermata Intern. Melodies v. Champions Golf Club, Civ. A. No. H-88-0187.

• Decision Date: 29 May 1989
• Docket Number: Civ. A. No. H-88-0187.
• Citation: 712 F. Supp. 1257
• Parties: FERMATA INTERNATIONAL MELODIES, INC., Shapiro, Bernstein & Co., Inc., WB Music Corp. and Famous Music Corporation, Plaintiffs, v. CHAMPIONS GOLF CLUB, INC., and Jack Burke, Jr., Defendants.
• Court: U.S. District Court — Southern District of Texas

712 F. Supp. 1257

FERMATA INTERNATIONAL MELODIES, INC., Shapiro, Bernstein & Co., Inc., WB Music Corp. and Famous Music Corporation, Plaintiffs, v. CHAMPIONS GOLF CLUB, INC., and Jack Burke, Jr., Defendants.

Civ. A. No. H-88-0187.

United States District Court, S.D. Texas, Houston Division.

May 29, 1989.

COPYRIGHT MATERIAL OMITTED

John B. Nelson, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., Mark W. Brooks, Young, Bacon & Brooks, Houston, Tex., for plaintiffs.

Tom Alexander and David Sachs, Houston, Tex., for defendants.

ORDER

HITTNER, District Judge.

Pending before this Court are Champions and Jack Burke's Motion for Summary Judgment (Document # 18), Plaintiffs' Cross-Motion for Summary Judgment (Document # 23), and Plaintiffs' Motion for Leave to Supplement Plaintiffs' Cross-Motion for Summary Judgment (Document # 25).

Plaintiffs, owners of certain copyrights, filed this copyright infringement action against Defendants Champions Golf Club, Inc., and Jack Burke, Jr., the corporate Defendant's president and principal stockholder. Plaintiffs in this action are members of the American Society of Composers, Authors and Publishers (ASCAP) to which Plaintiffs have granted the nonexclusive right to license nondramatic performances of their copyrighted musical compositions. Plaintiffs allege that Defendants allowed the unauthorized public performance of Plaintiffs' copyrighted songs in a restaurant of the Champions Golf Club in Houston, Texas, on the night of September 6, 1986.

First, this Court will address Plaintiffs' Motion for Leave to Supplement Plaintiffs' Cross-Motion for Summary Judgment. This motion shall be granted and this Court shall consider the original affidavit (Document # 26) in support of Plaintiffs' motion for summary judgment.

Second, this Court will discuss the summary judgment motions. Both Plaintiffs and Defendants have filed motions for summary judgment. Having considered the cross motions for summary judgment, the Court makes the following conclusions:

COPYRIGHT INFRINGEMENT

This is a suit for copyright infringement under Title 17 of the United States Code. 17 U.S.C. §§ 101-914 (1982 & Supp.1985). Therefore, jurisdiction of this Court is based upon Title 28, United States Code, Section 1338(a). 28 U.S.C. § 1338(a) (1982).

In an action for copyright infringement, the elements of Plaintiffs' proof are as follows:

(1) the originality and authorship of the compositions involved;

(2) compliance with all formalities required to secure a copyright under Title 17, United States Code;

(3) that Plaintiffs are the proprietors of the copyrights of the compositions involved in this action;

(4) that the compositions were performed publicly for profit by the defendants¹; and

(5) that the defendants had not received permission from any of the plaintiffs or their representatives for such performance.

Van Halen Music v. Palmer, 626 F.Supp. 1163, 1165 (W.D.Ark.1986) (quoting Boz Skaggs Music v. KND Corp., 491 F.Supp. 908, 912 (D.Conn.1980)).

"A prima facie case as to the first three elements may be made by submitting certified copies of copyright registration certificates and any subsequent assignments." Van Halen, 626 F.Supp. at 1165. Copyright registration certificates constitute prima facie evidence of the facts stated therein, 17 U.S.C. § 410(c) (1982), and are proof of plaintiffs' ownership of valid copyrights in the compositions in suit. Tennessee Fabricating Co. v. Moultrie Mfg. Co., 421 F.2d 279, 282 (5th Cir.), cert. denied, 398 U.S. 928, 90 S.Ct. 1819, 26 L.Ed.2d 91 (1970).

The Court notes that the Defendants do not dispute whether the Plaintiffs are the owners of valid copyrights in the musical compositions in question. Plaintiffs, however, submitted certified copies of the registration certificates and any subsequent assignments to the songs in question. The Plaintiffs have provided sufficient evidence to establish compliance with the formalities of Title 17. Additionally, Defendants do not dispute that the musical compositions in question were performed or that Defendants did not receive permission from Plaintiffs or their representatives for the performance. Therefore, the issue before this Court as to Plaintiffs' claim of copyright infringement is whether the performances were "public."

The issue of whether the compositions were performed "publicly" is a question of law for this Court to decide. See, e.g., Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 62-63 (3d Cir.1986) (court found "public" performance on cross motions for summary judgment); Ackee Music, Inc. v. Williams, 650 F.Supp. 653, 655-56 (D.Kan.1986) (court found "public" performance on plaintiffs' motion for summary judgment); Hinton v. Mainlands of Tamarac, 611 F.Supp. 494, 495 (D.C.Fla.1985) (court found "public" performance on plaintiffs' motion for summary judgment).

The Copyright Act defines the term "publicly" as follows:

(1) to perform or display a copyrighted work at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.

17 U.S.C. § 101 (1982). The scope of the definition of "publicly" is discussed in the legislative history of the 1975 amendments to the Copyright Act.

Under clause (1) of the definition of "publicly" in section 101, a performance or display is "public" if it takes place "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." One of the principal purposes of the definition was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O. Bull. 203 (D.Md.1932), performances in "semipublic" places such as clubs, lodges, factories, summer camps, and schools are "public performances" subject to copyright control. The term "a family" in this context would include an individual living alone, so that a gathering confined to the individual's social acquaintances would normally be regarded as private. Routine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering of a "substantial number of persons."

Ackee Music, 650 F.Supp. at 655 (quoting H.R.Rep. No. 1476, 94th Cong., 2d Sess. 64, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5677-78).

In order for this Court to find a copyright infringement violation, the performance of the copyrighted musical compositions at Defendants' establishment, Champions Golf Club, must come within the Copyright Act's definition of public performance. 17 U.S.C. § 101. The parties to this action do not dispute that Champions Golf Club is a private club in the golfing business. That fact, however, does not withdraw Champions Golf Club from the statutory definition of "public." The legislative history is clear that a performance in a semipublic place, such as a club, constitutes a "public" performance. Additionally, twenty-one members plus guests were present in the dining room of the club on the night of September 6, 1986, which is the night of the "performance" in question (see Document # 23, attachment # 2, Burke Exhibit # 2). The Court considers twenty-one members plus guests to be a "substantial number of persons outside of a normal circle of a family." This Court finds that the performance in question was a "public performance." Therefore, this Court concludes that Plaintiffs have established that Defendants infringed Plaintiffs' copyrights.

AFFIRMATIVE DEFENSES

In Defendants' Answer, Defendants affirmatively pleaded "laches, estoppel, waiver and bad faith on the part of Plaintiffs" (Document # 3, p. 2). Defendants' assertion of these defenses is based on the alleged failure of Plaintiffs or their agent ASCAP to respond to a written request made in August, 1985, for "a list of ASCAP's members' music" (see Document # 27, p. 2 and Exhibit D). Defendants further assert that "over two years after Champions Golf Club requested a list of ASCAP's members' songs, ASCAP sent undercover agents to spy on Champions' private golf facility" (see Document # 27, p. 2). This Court will address these two assertions separately.

The defense, "that ASCAP refused to provide Defendants a complete list of the music it licensed, is without merit." Billy Steinberg Music v. Cagney's Pub, Inc., 1988 Copyright L. Dec. (CCH) ¶ 26,268 (N.D.Ill.1988); see also Cass County Music Co. v. Vineyard County Golf Corp., 605 F.Supp. 1536, 1537 (D.Mass.1985) ("Plaintiffs sic failure to supply a complete list of all copyrighted compositions is of no legal consequence."). A copyright owner's obligation is merely to respond to a written request asking whether specific compositions are in the owner's collection. Famous Music Corp. v. Bay State Harness Ass'n, 554 F.2d 1213, 1215 (1st Cir.1977).

This Court has considered the following facts in evaluating Defendants' affirmative defense: Mr. Tom Alexander, defense counsel, wrote a letter dated August 8, 1985, to Mr. Kenneth F. Clausen of ASCAP seeking "a list of ASCAP's members' music" (Document # 27, Exhibit D). Mr. Clausen responded to Mr. Alexander in a letter dated August 20, 1985, which stated:

Please be advised that a complete list of songs in the Society's repertory is maintained at the Society's New York office. There are hundreds of thousands of compositions written and published by more than 40,000 members of ASCAP. Our representatives carry an ASCAP Index of Performed Works, which is available for you or your client's examination or purchase.

If you would like to purchase this list of songs (with the Supplement), please forward to this office a check in the amount of $30.00, and we will then order the Index from our New York office.

For your information, enclosed is a brochure printed by ASCAP, and a list of the composers, authors and publishers whom we represent.

(Document # 27, Exhibit E.) The...