Hickory Grove Music v. Andrews

• Decision Date: 13 September 1990
• Docket Number: No. CV 89-104-BLG-JFB.,CV 89-104-BLG-JFB.
• Citation: 749 F. Supp. 1031
• Parties: HICKORY GROVE MUSIC, et al., Plaintiffs, v. Andrew ANDREWS and Mary Ann Andrews, Defendants.
• Court: U.S. District Court — District of Montana

749 F. Supp. 1031

HICKORY GROVE MUSIC, et al., Plaintiffs, v. Andrew ANDREWS and Mary Ann Andrews, Defendants.

No. CV 89-104-BLG-JFB.

United States District Court, D. Montana, Billings Division.

July 19, 1990.

On Motion for Reconsideration September 13, 1990.

COPYRIGHT MATERIAL OMITTED

John H. Grant, Jackson Law Offices, Helena, Mont., for plaintiffs.

Robert P. Ryan, Billings, Mont., for defendants.

MEMORANDUM AND ORDER

BATTIN, Senior District Judge.

Presently pending before the Court are cross-motions for summary judgment in this copyright infringement action. After reviewing the briefs and arguments of counsel, the depositions and affidavits on file, and the applicable statutory and case law, the Court grants plaintiff's Motion for Summary Judgment and denies defendant's Motion.

Facts and Procedural Background

Both parties in this copyright infringement case have moved for summary judgment, indicating that they believe that no material facts are at issue that would preclude the Court from ruling on the merits of the claims as a matter of law. After review of the documents on file, the Court agrees with the parties and sets forth below the basic facts underlying this lawsuit.¹

Plaintiffs own the copyrights to numerous musical compositions that they license through the American Society of Composers, Authors, and Publishers (ASCAP). Defendants own and operate George Henry's restaurant as a sole proprietorship in downtown Billings, Montana. The restaurant serves breakfast, lunch and dinner, and is of the "sit-down" variety; it is not a fast-food establishment. Approximately eighty-five customers per day patronize George Henry's, and the seating capacity is 120 persons in a gross seating area of 1,192 square feet. See Affidavit of Andrew Andrews. Although facilities for dining exist both upstairs and downstairs at the restaurant, only the first floor dining area is at issue in this case. Defendants have refused to disclose any detailed financial information regarding the restaurant's revenues during the pre-trial discovery process.

When the defendants originally refurbished the interior of the restaurant, they installed recessed ceiling speakers and hidden wiring for a public address system. Later, defendants determined that they did not need a public address system, and instead, they "bought a used radio amplifier for use on the main floor level only." See Affidavit of Mary Ann Andrews. The sound system in use at George Henry's consists of an amplifier, tuner, audio cassette deck, and the speakers and wiring originally installed for the public address system. See Affidavits of Marlene Anderson & Dennis Nitschke. The receiving apparatus is located in the lobby of the restaurant. Five operative ceiling speakers are used on the first floor of the restaurant. See Affidavit of Marlene Anderson. The dining room speakers are located between thirty and forty-five feet from the receiving apparatus. See Affidavit of Dennis Nitschke.

The sound system was not professionally installed, and its design is not optimal for playing background music for customers. See Affidavits of Marlene Anderson & Dennis Nitschke. Nevertheless, music may be, and often is, transmitted throughout the first floor of the restaurant, both while the restaurant is open to the public and during the hours that it is closed. Because the sound system is often tuned to a local radio station during the hours that the public patronizes George Henry's, ASCAP contacted defendants numerous times between 1985 and 1988 by letters, phone calls, and personal visits to facilitate licensing for the performance of copyrighted materials. See, e.g., Deposition of Andrew Andrews, Exhibits 1-21; Affidavit of Terrance M. Sullivan. In the course of these contacts, ASCAP set forth the rudiments of copyright law, the licensing system that governs reproduction of musical compositions, and a proposed licensing agreement with annual fees ranging between $189.00 and $248.00.

Defendants refused to enter any licensing agreement with ASCAP, maintaining that their use of the sound system was merely personal and that their establishment was so small that they were exempt from the copyright infringement laws. ASCAP sent two investigators to George Henry's on November 5, 1988. The investigators visited the restaurant both at lunch time and at dinner time, and they were seated in the first floor dining rooms. On both occasions, the sound system was tuned to a local radio station, and the songs that were played were distinctly audible. See Affidavits of Wallace Ridgeway & Mike Horner.

The investigators identified thirty-nine of forty-six musical compositions that were played during their visit to George Henry's. See Affidavit of Mike Horner; Supplemental Affidavit of Wallace Ridgeway. Plaintiffs claim ownership of, and ASCAP claims licensing rights to, six of those compositions. The alleged unauthorized performance of those six compositions forms the basis of this lawsuit. Plaintiffs sue for copyright infringement under Title 17 of the United States Code, and seek injunctive relief, statutory damages, and attorney fees and costs. See 17 U.S.C. §§ 502, 504-505.

Defendants do not deny that they may have broadcast the musical compositions at issue over their sound system on November 5, 1988. They claim instead that an exemption to the copyright infringement law shelters their establishment from liability. This exemption is known as the "home-system defense," and it applies to transmissions of performances of musical compositions if the transmissions are made by means of a single receiving apparatus of the type commonly used in private homes. 17 U.S.C. § 110(5). Defendants maintain that their sound system is comparable to a home sound system which is exempt from the general copyright laws. Plaintiffs dispute defendants' contention and argue that the "home-system defense" does not apply to defendants' establishment.

Discussion

As a preliminary matter, summary judgment is "available in a copyright infringement action where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Rodgers v. Eighty Four Lumber Company, 617 F.Supp. 1021, 1022 (W.D.Pa.1985); see also Rule 56(c), Fed.R.Civ.P. In deciding a motion for summary judgment, a judge must weigh the evidence in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Inferences may be drawn only if they are reasonable in view of contextual facts or of an undisputed factual background. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 631-32 (9th Cir.1987).

The burden is initially on the moving party to make out a prima facie case showing that no material facts exist to preclude summary judgment. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to set forth specific facts that refute the moving party's showing. T.W. Electrical Service, 809 F.2d at 630; see also Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.), cert. denied, 479 U.S. 949, 107 S.Ct. 435, 93 L.Ed.2d 384 (1986). The Court's ultimate duty in deciding a motion for summary judgment is to determine whether the "specific facts" set forth by the non-moving party, coupled with the undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in the non-moving party's favor based on that evidence. T.W. Electrical Service, 809 F.2d at 631.

In the instant case, plaintiffs initially move for summary judgment and attempt to make out a prima facie case for copyright infringement, injunctive relief, statutory damages, and attorney fees and costs. Defendants' motion for summary judgment, in turn, attempts to show as a matter of law that the "home-system defense" precludes a finding that plaintiffs' copyrights have been infringed. The Court will first consider plaintiffs' arguments on copyright infringement. Second, assuming that an infringement is found, the Court will consider the validity of the "home-system defense," and thereby determine the merits of defendants' motion for summary judgment. If this defense fails, the Court will address the issue of statutory damages and attorney fees and costs.

A. Copyright Infringement

In order to make out a prima facie case of copyright infringement, the plaintiffs bear the burden of proving:

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

(2) compliance with all the formalities of copyright registration under Title 17, United States Code;

(3) that the plaintiffs own the copyrights;

(4) that the compositions were performed publicly by the defendants; and

(5) that the defendants had not received permission from the plaintiffs to perform the compositions.

Sailor Music v. Mai Kai of Concord, Inc., 640 F.Supp. 629, 632 (D.N.H.1986); accord Broadcast Music, Inc. v. Hartmarx Corp., 1989 WESTLAW 121290, 1989 U.S.Dist. LEXIS 12104 (N.D.Ill.1989).

In support of the first three elements of their prima facie case, plaintiffs have submitted copies of their copyright registration certificates, indicating that ASCAP holds the legal licensing rights to the compositions at issue. Photocopies of copyright certification records have been accepted by other courts as prima facie proof of (1) originality and ownership of the compositions, (2) compliance with formalities, and (3) ownership of the copyrights. See Sailor Music, 640 F.Supp. at 632 (citing Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474, 480 (D.Del.1985)). Moreover, defendants do not dispute the first three elements of plaintiffs' prima facie case. Accordingly, the Court concludes that plaintiffs have proven ownership and control of the musical copyrights at issue.

Public performance of copyrighted material may be proven by...