Jobete Music Co. v. Johnson Communications, No. C-3-01-434.

• Decision Date: 12 August 2003
• Docket Number: No. C-3-01-434.
• Citation: 285 F.Supp.2d 1077
• Parties: JOBETE MUSIC CO., INC., et al., Plaintiffs, v. JOHNSON COMMUNICATIONS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

285 F.Supp.2d 1077

JOBETE MUSIC CO., INC., et al., Plaintiffs, v. JOHNSON COMMUNICATIONS, INC., et al., Defendants.

No. C-3-01-434.

United States District Court, S.D. Ohio, Western Division.

August 12, 2003.

COPYRIGHT MATERIAL OMITTED

Daniel Oliver Berger, Kimberly E. Ramundo, Thompson, Hine, & Flory-1, Jeffrey Francis Peck, Ulmer & Berne LLP-1, Cincinnati, OH, for Plaintiffs.

Walter Reynolds, Porter Wright Morris & Arthur-3, Dayton, OH, for DefendantS.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. # 33); CONFERENCE CALL SET

RICE, Chief Judge.

Plaintiffs, who are owners of copyrights in various musical selections, bring the instant lawsuit against Defendants Johnson Communications, Inc. ("JCI"), and Mr. James W. Johnson, Jr. ("Johnson"), for copyright infringement. JCI is in the business of operating a commercial radio station in Dayton, Ohio, known by the call letters "WDAO." Johnson is the President, General Manager and majority owner of JCI, with primary responsibility for the control, management, operation and maintenance of its affairs.

Beginning in 1988, Defendants were treated as if they held a license by the American Society of Composers, Authors and Publishers ("ASCAP"), the performing rights licensing organization of which all Plaintiffs are members.¹ That de facto licensing arrangement authorized the public performance of any or all of the hundreds of thousands of copyrighted musical compositions in the ASCAP repertory, provided that Defendants complied with the reporting and payment provisions of the license. Defendants, however, defaulted on the payment of license fees to ASCAP and, consequently, on March 23, 1993, ASCAP terminated the de facto licensing arrangement. Defendants have not obtained a subsequent license. Despite repeated reminders of their liability under copyright laws,² they allegedly have continued to perform copyrighted music in the ASCAP repertory without permission. In mid-January, 2001, Defendants allegedly aired, without permission, five compositions for which Plaintiffs have copyrights. On October 23, 2001, Plaintiffs initiated the instant litigation, alleging five counts of copyright infringement. On August 15, 2002, Plaintiffs filed an Amended Complaint (Doc. # 27), which added one additional count of infringement, based on the airing of the composition, "Always & Forever," and joined Rod Temperton (dba RodSongs) as a party-plaintiff.

Pending before the Court is Plaintiffs' Motion for Summary Judgment (Doc. # 33). For the reasons assigned, their Motion is SUSTAINED in PART and OVERRULED in PART.

I. Standards Governing Plaintiffs' Motion for Summary Judgment (Doc. # 33)

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991)(The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.")(quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 486, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990); see also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment...."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

II. Merits of Plaintiffs' Motion for Summary Judgment (Doc. # 33)

In their Motion, Plaintiffs assert that they are entitled to summary judgment on the issue of Defendants' liability as copyright infringers, and, therefore, that they are further entitled to statutory damages, a permanent injunction, attorney fees and costs. In response, Defendants do not argue that their conduct did not constitute copyright infringement.³ Rather, they contest the amount of damages that Plaintiffs seek for the alleged infringement, and they assert that an award of attorney fees is inappropriate. As a means of analysis, the Court will begin with the threshold issue of Defendants' alleged liability for copyright infringement, following which it will discuss Plaintiffs' requests for relief.

A. Liability for Copyright Infringement by Defendants

"Copyright protects the expressions of ideas, but not the ideas themselves or general concepts." Smith v. Muscle Shoals Sounds, 2002 WL 31770324 (6th Cir. Dec.9, 2002). To establish a claim for copyright infringement of a musical work by means of public performance, a claimant must prove: (1) the originality and authorship of a composition; (2) a valid copyright under the formalities of the Copyright Act; (3) claimant's ownership of the copyright at issue; (4) defendant's public performance of the composition; and (5) defendant's failure to obtain permission from the claimant for such performance. Varry White Music v. Banana Joe's of Akron, Inc., 2002 WL 32026609 (N.D.Ohio Oct.28, 2002); Superhype Pub., Inc. v. Vasiliou, 838 F.Supp. 1220, 1224 (S.D.Ohio 1993); see also Feist Publications, Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Coles v. Wonder, 283 F.3d 798 (6th Cir.2002).

To establish their ownership of valid copyrights, i.e., the first three elements above, Plaintiffs have submitted the affidavit of Ms. Mary Jenkins, the ASCAP employee in charge of maintaining pertinent copyright records (Doc. # 33, Ex. 1). Ms. Jenkins' duties include maintaining photocopies of original copyright certificates,...