George Simon, Inc. v. Spatz

• Citation: 492 F. Supp. 836
• Decision Date: 18 June 1980
• Docket Number: No. 79-C-70,78-C-281.,79-C-70
• Parties: GEORGE SIMON, INC., General Music Publishing Co., Inc., United Artists Music Co., Inc., Almo Music Corp., Hammer and Nails Music, Inc. and Bourne Co., Plaintiffs, v. Bernard L. SPATZ, Defendant. LEWIS MUSIC PUBLISHING COMPANY, INC. and Granite Music Corporation, Plaintiffs, v. Bernard L. SPATZ, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

492 F. Supp. 836

GEORGE SIMON, INC., General Music Publishing Co., Inc., United Artists Music Co., Inc., Almo Music Corp., Hammer and Nails Music, Inc. and Bourne Co., Plaintiffs, v. Bernard L. SPATZ, Defendant.

LEWIS MUSIC PUBLISHING COMPANY, INC. and Granite Music Corporation, Plaintiffs, v. Bernard L. SPATZ, Defendant.

Nos. 79-C-70, 78-C-281.

United States District Court, W. D. Wisconsin.

June 18, 1980.

Frank J. Daily, Quarles & Brady, Milwaukee, Wis., for plaintiffs.

Gene D. Linehan, Madison, Wis., for defendant.

CRABB, District Judge.

These consolidated civil actions for monetary and injunctive relief based on alleged copyright infringement are before the court on plaintiffs' motions for summary judgment.

I find that there is no genuine issue with respect to any of the following material facts.

FACTS

Each of the plaintiffs is a music publisher and a member of the American Society of Composers, Authors and Publishers (ASCAP). Each has granted to ASCAP a nonexclusive right to license public performances for profit of each of their copyrighted musical compositions. On behalf of plaintiffs and its other members, ASCAP licenses radio and television stations, restaurants, taverns, night clubs and other establishments whose members wish to perform publicly copyrighted musical compositions in the ASCAP repertory.

Defendant is the owner of an establishment known as the Green Bough Lounge which is located in Wausau, Wisconsin. He and his wife operate the Green Bough as a place of business for public entertainment, accommodation, amusement, and refreshments. Liquor and soft drinks are served and live music is provided.

Since December, 1976 or earlier, ASCAP representatives have written and spoken to defendant to request that he obtain and maintain a license to perform publicly any of the musical compositions owned by ASCAP members. Defendant and his wife have refused to maintain or apply for such a license, while continuing to provide live performances of copyrighted compositions.

On April 8, 1978, Jamie Farnum and John Berggren visited defendant's establishment. Both men had been engaged by ASCAP to make the visit and to list all of the musical compositions played at the Green Bough Lounge. On that evening, Farnum and Berggren heard the compositions, "Paper Roses" and "Tiny Bubbles (Hua Li'L)" performed by a live band called "The Grenier Bros." A valid copyright to "Paper Roses" is owned by plaintiff Lewis. A valid copyright to "Tiny Bubbles" is owned by plaintiff Granite.

On January 6, 1979, Dennis and Dani Gilmore visited the Green Bough Lounge in the employ of ASCAP and heard a live band called "The Versalites" perform "(I Left My Heart) In San Francisco," "Don't It Make My Brown Eyes Blue," "Top of the World," "All of Me," and "Muskrat Ramble."¹ Valid copyrights to each of these five compositions are owned by the various plaintiffs in 79-C-70.²

OPINION

Title 17 U.S.C. § 501(a) provides that anyone who violates any of the exclusive rights of the copyright owner is an infringer of the copyright. Title 17 U.S.C. § 106 provides that in the case of musical works, the owner of the copyright has the exclusive rights both to perform the copyrighted work publicly and to authorize the public performance of a copyrighted work. Incidental to the property right created in the copyright owner is the power to lease or license performances by others on stipulated terms. Westway Theatre v. Twentieth Century-Fox Film Corp., 30 F.Supp. 830 (D.Md.1940), aff'd 113 F.2d 932 (4th Cir. 1940).

The elements necessary for establishing infringement are these:

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

Shapiro, Bernstein & Co. v. Log Cabin Club Assoc., 365 F.Supp. 325, 328 fn. 4 (N.D.W. Va.1973), quoted in Chess Music, Inc. v. Tadych, 467 F.Supp. 819, 821 (E.D.Wis. 1979).

None of these elements is in dispute in this case. Defendant has denied none of the allegations or averments of the plaintiffs with the exception of the averment that two of the musical works ("Tiny Bubbles" and "Paper Roses") were played in his establishment on April 8, 1978. Even as to this point he has offered no evidence which would raise a factual dispute militating against a grant of summary judgment in both cases; that is, he has submitted nothing to contradict the averments of the ASCAP employees that they heard and identified the musical works at issue. In deposition testimony, he and his wife admitted having no knowledge of what pieces were played on either of the nights of April 8, 1978 and January 6, 1979.

Defendant makes the argument that plaintiffs are unable to demonstrate that the works played were exactly the same as those copyrighted, but such a demonstration is unnecessary. All that plaintiffs need prove is that their works were performed. The degree of similarity to the original is irrelevant if the work is held out to be a performance of the copyrighted...