Granite Music Corp.. v. Ctr. St. Smoke House Inc.

• Decision Date: 19 May 2011
• Docket Number: No. 09–CV–00872A(F).,09–CV–00872A(F).
• Citation: 786 F.Supp.2d 716
• Parties: GRANITE MUSIC CORPORATION, Coolwell Music, Troup London Music, and Universal–Polygram International Publishing, Inc., Plaintiffs.v.CENTER STREET SMOKE HOUSE, INC., Cregg S. Paul, and Scott R. Paul, Defendants.
• Court: U.S. District Court — Western District of New York

786 F.Supp.2d 716

GRANITE MUSIC CORPORATION, Coolwell Music, Troup London Music, and Universal–Polygram International Publishing, Inc., Plaintiffs.

v.CENTER STREET SMOKE HOUSE, INC., Cregg S. Paul, and Scott R. Paul, Defendants.

No. 09–CV–00872A(F).

United States District Court, W.D. New York.

May 19, 2011.

Michael J. Sciotti, and Robert C. Whitaker, Jr., of Counsel, Hancock Estabrook, LLP, Syracuse, NY, Michael Lawrence Amodeo, of Counsel, Damon Morey LLP, Buffalo, NY, Attorneys for Plaintiffs.Mehmet K. Okay, of Counsel, The Okay Law Firm, Batavia, NY, Attorneys for Defendants.

ORDER

RICHARD J. ARCARA, District Judge.

The above-referenced case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(B). On April 18, 2011, Magistrate Judge Foschio filed a Report and Recommendation, recommending that plaintiff's motion for entry of a default judgment be granted, that plaintiff be awarded statutory damages in the amount of $30,000 plus costs and attorneys' fees totaling $23,246.24, and that a permanent injunction prohibiting defendants from further copyright infringement should be granted.

The Court has carefully reviewed the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties, and no objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, plaintiff's motion for entry of a default judgment is granted, plaintiff is awarded statutory damages in the amount of $30,000 plus costs and attorneys' fees totaling $23,246.24, and the Court grants a permanent injunction prohibiting defendants from further copyright infringement.

The Clerk of Court shall take all steps necessary to close the case. SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on December 9, 2009, for pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Plaintiff's motion filed November 15, 2010, seeking a default judgment (Doc. No. 34).

BACKGROUND

Plaintiffs Granite Music Corporation (“Granite Music”), Coolwell Music (“Coolwell Music”), Troup London Music (“Troup London Music”), and Universal–Polygram International Publishing, Inc. (“Universal–Polygram”) (together, “Plaintiffs”), commenced this copyright infringement action on October 9, 2009, alleging that on May 17–18, 2008, Defendants Center Street Smoke House, Inc. (“the Smokehouse”), Cregg S. Paul (“Cregg Paul”), and Scott R. Paul (“Scott Paul”) (together, “Defendants”), presented three public performances of musical compositions for which the copyrights are owned by Plaintiffs, in violation of the Copyright Act, 17 U.S.C. § 501 et seq. (“the Act”). Plaintiffs seek to recover statutory damages, available under § 504 of the Act, for each of three alleged copyright infringements, and costs, including attorney damages. On December 7, 2009, Defendants filed an answer (Doc. No. 12), generally denying the salient allegations of the Complaint and asserting 12 Affirmative Defenses including, inter alia, Plaintiffs suffered no damages as a result of Defendants' alleged copyright infringement activity (Second Affirmative Defense), Defendants' actions were commercially reasonable and lawful (Third Affirmative Defense), Plaintiffs' asserted copyrights and their respective registrations are invalid (Eighth and Ninth Affirmative Defenses), payment (Eleventh Affirmative Defense), and failure to join necessary party (Twelfth Affirmative Defense).

The parties to this action engaged in four mediation sessions pursuant to this District's Alternative Dispute Resolution plan, as a result of which Defendants agreed to withdraw their Answer and admit liability. On June 23, 2010, the parties filed the fully executed Stipulation to Withdraw Defendants' Answer with Prejudice and Admit Liability (Doc. No. 30) (“Stipulation”), in which Defendants state Defendants “hereby admit liability as to all allegations contained in the Complaint....” Stipulation at 1. The parties further stipulated that Plaintiff would seek a default judgment against Defendants requesting statutory damages, attorneys' fees and costs, and a permanent injunction against Defendants. Id. at 2. On July 6, 2010, Plaintiffs filed a Request for Entry of Default (Doc. No. 31), which was granted on July 23, 2010 when the Entry of Default against Defendants was filed by the Clerk of the Court (Doc. No. 32).

On November 15, 2010, Plaintiffs filed the instant motion (Doc. No. 34) (“Plaintiffs' motion”), seeking entry of a default judgment against Defendants. Plaintiffs' motion is supported by the attached Affidavit of Michael J. Sciotti, Esq. (Doc. No. 34–1) (“Sciotti Affidavit”), with attached exhibit A (“Sciotti Affidavit Exh. A”), a Memorandum of Law in Support of Plaintiffs' Motion for a Default Judgment (Doc. No. 34–2) (“Plaintiffs' Memorandum”), with attached exhibits 1 through 8 (“Plaintiffs' Exh(s). –––”), and the Declaration of Douglas Jones in Support of Plaintiffs' Motion for Default Judgment (Doc. No. 34–3) (“Jones Declaration”), with attached exhibits A though D (“Jones Declaration Exh(s). –––”). In opposition to Plaintiffs' motion, Defendants filed the Answering Affirmation of Mehmet K. Okay, Esq. (Doc. No. 38) (“Okay Affirmation”), on January 10, 2011, and the Affidavit of Cregg S. Paul (Doc. No. 39) (“Cregg Paul Affidavit”), on January 16, 2011.

On January 21, 2011, Plaintiffs filed the Affidavit of Michael J. Sciotti, Esq. (Doc. No. 40) (“Sciotti Reply Affidavit”), and Plaintiffs' Reply Memorandum in Support of Their Motion for a Default Judgment (Doc. No. 41) (“Plaintiffs' Reply”). Oral argument was deemed unnecessary.

Based on the following, Plaintiffs' motion for entry of a default judgment should be GRANTED.

FACTS ¹

Granite Music, Coolwell Music, Troup London Music, and Universal–Polygram, Plaintiffs to this action, are songwriters or music publishers, as well as members of American Society of Composers, Authors and Publishers (“ASCAP”), a performing rights licensing organization to which Plaintiff have granted a nonexclusive right to license non-dramatic public performances of the musical compositions to which Plaintiffs own the copyrights. ASCAP offers to providers of entertainment, including radio and television stations, restaurants, and nightclubs, licenses permitting copyrighted musical compositions within ASCAP's repertoire to be lawfully performed in such establishments. ASCAP routinely contacts owners and operators of entertainment establishments where ASCAP's members' copyrighted music is performed to advise the owners and operators of the obligation imposed under federal copyright law to obtain the proper license prior to performing such music. Because Plaintiff's licensing rights to the musical compositions within their repertoire is non-exclusive, users of such musical compositions who do not obtain a license from ASCAP can still lawfully perform such musical compositions by separately negotiating with each copyright owner for permission to perform such works.

Defendant Smokehouse is a business establishment that provides public entertainment, accommodation, amusement and refreshments. The Smokehouse is owned and operated by Defendants Cregg Paul and Scott Paul who are financially benefitted by the entertainment provided at the Smokehouse.

ASCAP maintains business records for each establishment ASCAP has contacted to license or attempted to license, including Defendants. In March 2002, ASCAP made its first of 57 contacts with Defendants to offer Defendants an ASCAP licensing agreement. In subsequent contacts in person, by letters, and telephone conversations, ASCAP representatives repeatedly advised Defendants of Defendants' obligations and liability under the Copyright law, and Defendants occasionally tendered various payments to ASCAP, but continued to refuse to sign the requisite ASCAP licensing agreement. In particular, Defendants tendered to ASCAP three checks over a five-year period, including $674.50 in 2002, $2,504.14 in 2004, and $4,067.37 in 2007, for a total of $7,246. Upon receipt of each check, ASCAP contacted Defendants and advised that ASCAP could not cash the checks without an ASCAP licensing agreement signed by Defendants. ASCAP further advised that without an ASCAP licensing agreement, Defendants were not authorized to perform any of the copyrighted musical compositions within ASCAP's repertoire, and any such performance would constituted copyright infringement. Plaintiffs maintain that the signed licensing agreements are required because without such agreements, ASCAP would be unable to keep track of its licensees and the terms of license issued to each. Given Defendants' continued refusal to enter into an ASCAP licensing agreement, Plaintiff's returned each of the three checks to Defendants, accompanied by letters explaining that unless Defendants executed an ASCAP licensing agreement, Plaintiffs could not cash the checks. Accordingly, ASCAP has never received any payment for a licensing agreement from the $7,246 in checks Defendants tendered to ASCAP. The fees on the licensing agreement ASCAP repeatedly offered Defendants between March 2002 through 2010 total $10,877.40.

ASCAP arranged for independent investigator Lawrence DeMarco (“DeMarco”), to attend a public musical performance given by “Billy Parker and The Silvers” (“the band”) at the Smokehouse. The band was not employed by Defendants, but was an independent contractor. The musical performance, which commenced in the evening of May 17, 2008 and continued into the early morning of May 18, 2008, included three compositions within ASCAP's repertoire, “Stars on the Water,” “Route 66” (a/k/a “Get Your Kicks on Route 66”), and “Tulsa...