Joe Hand Promotions, Inc. v. Barber

• Decision Date: 19 May 2021
• Docket Number: Case No. 1:18-cv-1015-WKW-SMD
• Citation: 540 F.Supp.3d 1070
• Parties: JOE HAND PROMOTIONS, INC., Plaintiff, v. Andre BARBER, Defendant.
• Court: U.S. District Court — Middle District of Alabama

540 F.Supp.3d 1070

JOE HAND PROMOTIONS, INC., Plaintiff,

v.Andre BARBER, Defendant.

Case No. 1:18-cv-1015-WKW-SMD

United States District Court, M.D. Alabama, Southern Division.

Signed May 19, 2021

Forrest Page Gamble, F. Page Gamble PC, Birmingham, AL, for Plaintiff.

Andre Barber, Tallahassee, FL, Pro Se.

RECOMMENDATION OF THE MAGISTRATE JUDGE

Stephen M. Doyle, CHIEF U.S. MAGISTRATE JUDGE

I. INTRODUCTION

This recommendation addresses plaintiff's motion for summary judgment (Doc. 44), defendant's cross motion for summary judgment (Doc. 46) and defendant's motion to dismiss for lack of standing (Doc. 52). The instant case is one of at least 15 copyright infringement actions filed by plaintiff, Joe Hand Promotions, Inc. ("JHP"), against various bars, restaurants, and other commercial venues across the country for showing the August 26, 2017 closed-circuit telecast of the Floyd Mayweather, Jr. v. Conor McGregor boxing match¹ ("the fight") without paying JHP's licensing fee.² JHP purchased the exclusive commercial exhibition rights to the fight from Mayweather Promotions, LLC, and sublicensed these rights to commercial venues such as bars and restaurants for a fee ranging from $3,700 to $15,700 based on the venue's capacity. Pro se defendant, Andre Barber ("Barber"), is the owner of Sports Bar 321, LLC, an Alabama limited liability company that did business under the tradename Blue Bar & Grill ("Blue Bar"). Blue Bar operated at 3700 Ross Clark Circle in Dothan Alabama.³ Plaintiff's undisputed evidence establishes that Blue Bar showed the fight to its patrons on several large televisions, advertised the fight on its Facebook page and on the premises, and charged a $20 cover fee the night of the fight. Although Blue Bar was an existing JHP customer that had previously purchased Ultimate Fighting Championship (UFC) broadcasts, it did not purchase the Mayweather v. McGregor fight. Barber managed Blue Bar and was present on the night of the fight. He denies personally copying or displaying a live performance of the fight.

Plaintiff has presented sufficient record evidence to establish the essential elements of its copyright infringement claim, and defendant has failed to come forward with any evidence showing that the material facts are genuinely disputed. Accordingly, the undersigned magistrate judge recommends that plaintiff's motion for summary judgment (Doc. 44) be GRANTED and that JHP be awarded statutory damages of $15,000, that defendant's motion for summary judgment (Doc. 46) be DENIED, and that defendant's motion to dismiss for lack of standing (Doc. 52) be DENIED.

II. PLAINTIFF'S CLAIMS

Plaintiff's two-count complaint pleads a count of satellite and cable piracy pursuant to 47 U.S.C. §§ 605, 553 and a count of copyright infringement pursuant to 17 U.S.C. §§ 106, 501. Compl. (Doc. 1) pp. 5-6. Plaintiff moves for summary judgment only on its copyright infringement claim, and its satellite and cable piracy claim are not addressed in this recommendation.

III. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue for trial. Id. at 323, 106 S.Ct. 2548. Once the moving party meets this burden, the non-moving party must come forward with record evidence showing that a material fact is genuinely in dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The legal elements of a claim determine which facts are material and which are irrelevant. Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is not material if a dispute over that fact would not affect the outcome of the case under the governing law. Id.

A court must view the proffered evidence in the light most favorable to the nonmovant and resolve all reasonable doubts about the facts in the nonmovant's favor. Johnson v. Bd. of Regents of Univ. of Ga. , 263 F.3d 1234,1242-43 (11th Cir. 2001). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita , 475 U.S. at 586, 106 S.Ct. 1348. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial," and summary judgment is appropriate.

Id. at 587, 106 S.Ct. 1348 (internal quotes and citation omitted). Although courts "should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education" that "leniency does not give a court license to serve as de facto counsel for a party[.]" GJR Investments, Inc. v. Cnty. of Escambia, Fla. , 132 F.3d 1359, 1369 (11th Cir. 1998). A "pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment." Brown v. Crawford , 906 F.2d 667, 670 (11th Cir. 1990).

B. Copyright Infringement

The Constitution's Patent and Copyright Clause grants Congress the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." U.S. CONST. ART. I § 8, cl. 8. The protection given to copyrights is wholly statutory, and the remedies for infringement are only those prescribed by Congress. Sony Corp. of Am. v. Universal City Studios, Inc. , 464 U.S. 417, 432, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). Copyright protection "subsists ... in original works of authorship fixed in any tangible medium of expression." Id. (quoting 17 U.S.C. § 102(a) ). Works of authorship include motion pictures and other audiovisual works. 17 U.S.C. § 102(a)(6) ; see also 17 U.S.C. § 101 (defining "audiovisual works" and "motion pictures").

Section 106 of the Copyright Act grants the copyright owner exclusive rights to (1) reproduce the copyrighted work, (2) prepare derivative works, (3) distribute copies of the work, (4) perform the work publicly, and (5) display the work publicly. 17 U.S.C. § 106. A person who violates any of the owner's exclusive rights is an infringer, and the owner is entitled to institute an action for infringement. 17 U.S.C. §§ 501(a) - (b). In an infringement action, the copyright owner may recover actual damages plus the infringer's profits or may elect statutory damages in an amount between $750 and $30,000, or up to $150,000 if the infringement was willful. 17 U.S.C. § 504. A reviewing court has discretion to award costs and reasonable attorneys’ fees. 17 U.S.C. § 505.

IV. UNDISPUTED FACTS

JHP is in the business of distributing sports and entertainment programming by closed circuit television to commercial venues such as bars and restaurants. Pl.’s Ex. B, Hand Aff. (Doc. 44-1) ¶ 3; Pl.’s Ex. B, Commercial Licensing Agreement (Doc. 44-2) p. 2. JHP purchased the exclusive license to distribute the Mayweather v. McGregor fight in commercial establishments in the United States from Mayweather Promotions, LLC. Commercial Licensing Agreement (Doc. 44-2).

Barber is the sole owner of Sports Bar 321, LLC, which did business under the trade name Blue Bar. Barber Decl. (Doc. 63-2) ¶ 2; Barber Admis. (Doc. 44-9) p. 2, nos. 1-2. Blue Bar was located at 3700 Ross Clark Circle in Dothan, Alabama. Barber Decl. (Doc. 63-2) ¶ 2, Pl.’s Ex. F, Racy Aff. (Doc. 44-6) p. 2. Barber was responsible for all aspects of managing Blue Bar including hiring staff, purchasing product, marketing, promotion, and entertainment. Barber Interrog. Resp. (Doc. 44-9) p. 18, no. 5; Barber Admis. (Doc. 44-9) p. 2, no. 3. Barber contacted JHP and was quoted a fee of $6,700 to show the fight. Barber Decl. (Doc. 63-2) ¶ 4. The bar decided not to pay the fee. Id. at 5.

Blue Bar showed the fight on four flat-screen televisions and a large projection screen. Pl.’s Ex. F, Racy Aff. (Doc. 44-6) p. 2. The bar charged a $20 cover fee and advertised the fight on the premises and its Facebook page. Id. ; Pl.’s Ex. G-1, Facebook Page (Doc. 44-8); Barber Interrog. Resp. (Doc. 44-9) p. 21, no. 21. There were approximately 100 people in the bar when the fight was shown. Pl.’s Ex. F, Racy Aff. (Doc. 44-6) p. 3. Barber was present at Blue Bar on the night of the fight performing his duties as manager. Barber Interrog. Resp. (Doc. 44-9) p. 18, no. 5; Barber Admis. (Doc. 44-9) p. 3, nos. 5-8. He personally saw part of the fight being broadcast at the bar. Barber Admis. (Doc. 44-9) p. 3, no. 7. Blue Bar earned income on the night of the fight from cover charges and the sale of food and beverages. Barber Interrog. Resp. (Doc. 44-9) p. 18, no. 6.

V. ANALYSIS

A. The Fight Telecast is Copyrighted.

To prove copyright infringement, a plaintiff must establish: (1) ownership of a valid copyright, and (2) that the defendant violated one or more of the plaintiff's exclusive rights to the copyrighted work under 17 U.S.C. § 106. Feist Publ'n, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). In any judicial proceeding, "the certificate of registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate." 17 U.S.C. § 410(c). "Once the plaintiff produces a certificate of copyright, the burden shifts to the defendant to demonstrate why the claim of copyright is...