Jobete Music Co., Inc. v. Media Broadcasting Corp.

• Decision Date: 01 December 1988
• Docket Number: Civ. No. C-87-778-WS.
• Citation: 713 F. Supp. 174
• Court: U.S. District Court — Middle District of North Carolina
• Parties: JOBETE MUSIC CO., INC.; David E. Lewis; Wayne I. Lewis; Jonathan Lewis d/b/a Jodaway Music; Science Lab Music Productions Ltd.; Flyte Tyme Tunes; Brockman Music; Poopy's Music; and Controversy Music, Plaintiffs, v. MEDIA BROADCASTING CORPORATION, Evans Broadcasting Corporation, and Mutter D. Evans, Defendants.

713 F. Supp. 174

JOBETE MUSIC CO., INC.; David E. Lewis; Wayne I. Lewis; Jonathan Lewis d/b/a Jodaway Music; Science Lab Music Productions Ltd.; Flyte Tyme Tunes; Brockman Music; Poopy's Music; and Controversy Music, Plaintiffs, v. MEDIA BROADCASTING CORPORATION, Evans Broadcasting Corporation, and Mutter D. Evans, Defendants.

Civ. No. C-87-778-WS.

United States District Court, M.D. North Carolina, Winston-Salem Division.

December 1, 1988.

Michael E. Weddington, Raleigh, N.C., for plaintiffs.

Michael R. Greeson, Jr., Winston-Salem, N.C., for defendants.

MEMORANDUM OPINION

BULLOCK, District Judge.

This matter is before the court upon the motion of Plaintiffs Jobete Music Company, Inc., et al. (Jobete) for summary judgment against Defendants Evans Broadcasting Corporation and Mutter D. Evans on eight counts of alleged copyright infringement.¹ As their remedies, Plaintiffs seek injunctive relief, damages of $3,000.00 per infringement, and costs, including a reasonable attorney's fee.

In response to Plaintiffs' motion, Defendants Evans Broadcasting and Mutter Evans have filed their own motion for summary judgment, contending that neither party may be held liable for copyright infringement even if such infringement occurred.

Based upon the pleadings, affidavits, briefs, and other documents filed with this court, Plaintiffs' motion for summary judgment will be granted and Defendants' cross-motion shall be denied.

STATEMENT OF FACTS

Plaintiffs are songwriters and music publishers who belong to the American Society of Composers, Authors and Publishers (ASCAP), which has a nonexclusive right from its members to license nondramatic public performances of their copyrighted musical compositions. On behalf of its more than 38,000 members, ASCAP licenses thousands of radio and television stations, restaurants, nightclubs, concert halls, and other establishments whose owners desire to perform copyrighted musical compositions in the ASCAP repertoire.

Defendant Mutter D. Evans is the president and sole shareholder of Defendant Evans Broadcasting Corporation, which is a holding company established to purchase radio properties. Evans Broadcasting is the sole shareholder of Media Broadcasting Corporation, which operates radio station WAAA in Winston-Salem, North Carolina. Mutter Evans is WAAA's president, owner, and general manager, and has primary responsibility for the station's control, management, operation, and maintenance of affairs by her own admission. (Defendants' Response to Plaintiffs' First Request for Admissions ¶ 38).

Mutter Evans acquired her interest in WAAA in November of 1979. For various periods until January 31, 1987, Defendants had license agreements with ASCAP which authorized the station to play any of the copyrighted musical compositions in the ASCAP repertoire. In return for such licenses, Defendants agreed to pay license fees to ASCAP. However, Defendants frequently failed to pay license fees when due, resulting in ASCAP's termination of Defendants' license on four separate occasions during the past four years. Three of those times licenses were renewed after Defendants took steps to cure their delinquencies. However, a failure to rectify the payment situation resulted in another termination on January 31, 1987.

Despite the lack of a license with ASCAP, WAAA broadcast eight songs in the repertoire of ASCAP on April 1 and 2, 1987. (Affidavits of Benny Allen and Kenneth Ayden). While Mutter Evans has denied any knowledge of the alleged infringement, she admits that if the songs were performed as alleged by Plaintiffs they were performed at a time when the station's license had been terminated. (Deposition of Mutter D. Evans, p. 24). In addition, Mutter Evans has also admitted that Defendants have continued to broadcast copyrighted music without permission of the copyright owners. (Defendants' Response to Plaintiffs' First Request for Admission ¶ 34).

On May 11, 1987, ASCAP offered to reinstate WAAA's license if it would pay past-due ASCAP license fees and submit licensee reports. However, Defendants refused this offer. Thereafter, on November 4, 1987, Plaintiffs filed the present action.

DISCUSSION

In a motion for summary judgment under Fed.R.Civ.P. 56, the moving party has the burden to demonstrate the absence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Magill v. Gulf & Western Indus., Inc., 736 F.2d 976, 979 (4th Cir.1984). In ruling on the motion, the court should assess all inferences in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). To demonstrate the lack of material issues, the moving party need not negate the elements of the opposing party's claim, but the non-moving party's lack of evidence must be pointed out. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party is successful in demonstrating the absence of material issues, then the nonmoving party is required to move beyond his or her pleadings and come forward with evidence raising a material issue. Fed.R. Civ.P. 56(e); Catrett, 477 U.S. at 324, 106 S.Ct. at 2553.

Keeping these principles in mind, the court must first determine whether any copyright infringement actually occurred in this case. In their brief in response to Plaintiffs' motion and in support of their own motion, Defendants do not seriously contest the infringement, but instead concentrate on the subsequent issues of whether either Mutter Evans or the Evans Broadcasting Corporation may be held liable for such alleged infringement. However, in their answers to Plaintiffs' complaint and request for admissions, Defendants have denied such infringement occurred. Therefore, the court will consider whether Plaintiffs have established a claim of copyright infringement and, if so, whether Defendants have come forward with sufficient evidence to avoid a motion for summary judgment.

Plaintiffs correctly point out that in order to maintain their claim they must establish the following elements with respect to the compositions in suit: (1) originality and authorship; (2) compliance with the formalities of the Copyright Act, 17 U.S.C. §§ 101-914; (3) Plaintiffs' ownership of the copyrights involved; (4) public performance for profit; and (5) lack of authorization. See Ackee Music, Inc. v. Williams, 650 F.Supp. 653, 655 (D.Kan.1986); Van Halen Music v. Palmer, 626 F.Supp. 1163, 1165 (W.D.Ark.1986); Fourth Floor Music, Inc. v. Der Place, Inc., 572 F.Supp. 41, 43 (D.Neb.1983); Shapiro, Bernstein & Co. v. "The Log Cabin Club Ass'n", 365 F.Supp. 325, 328 n. 4 (N.D.W.Va.1973). With regard to the first three elements, Plaintiffs have submitted copies of the registration certificates for the eight songs involved in this case. Under 17 U.S.C. § 410(c), these documents constitute prima facie evidence of the elements of originality and authorship, compliance with the formalities of the Copyright Act, and Plaintiffs' ownership of the copyrights involved in the absence of any contradictory evidence. See Sailor Music v. Mai Kai of Concord, Inc., 640 F.Supp. 629, 632 (D.N.H.1986); Blending-well Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474, 479-80 (D.Del.1985). As Defendants have not submitted any evidence to contradict the copyright registration certificates submitted by Plaintiffs, the first three elements of copyright infringement are thus established.

Concerning the fourth element, public performance for profit, Defendants have been unable to move beyond a bare assertion that the songs in question were not played by the station on the dates alleged by Plaintiffs. Construing the facts in the light most favorable to Defendants, the court finds that at best Defendants have established only that they have no documents regarding what songs are played on what dates and that they can neither confirm nor deny that the songs in question were played after their license was revoked. As such, Defendants have failed to come forward with sufficient evidence to raise a genuine issue of material fact in the face of the affidavits of Benny Allen and Kenneth Ayden, both of whom have stated that on the dates in question songs from ASCAP's repertoire were played on WAAA. As such, element four is also established.

Finally, with regard to the fifth element of copyright infringement, Mutter Evans admitted in her deposition that if Plaintiffs' allegations were true the station had no authorization to play the songs involved on the dates in question. Since the undisputed facts establish that the songs were indeed played on the dates in question and it is clear that there was no authorization for such broadcast, the elements of copyright infringement have been established as a matter of law.

Defendants contend, however, that notwithstanding any copyright infringement, neither Mutter Evans nor Evans Broadcasting Corporation may be held liable because under the doctrine of respondeat superior any liability would belong to Media Broadcasting. However, in a copyright infringement action of this type, the doctrine of respondeat superior is inapplicable. See Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.1963) (while normal agency rule of respondeat superior applies to servant acting within the scope of his employment, where an individual has the right and ability to supervise the infringing conduct and a financial interest in exploitation copyright law is best effected by imposing liability on the one benefiting from the infringement); Hideout Records & Distribs. v. El Jay Dee, Inc., 601 F.Supp. 1048, 1052 (D.Del. 1984) (court rejected use of statute shielding corporate officers, directors, and shareholders from liability for debts as a shield against copyright infringement liability). Instead, liability for copyright infringement may be...