Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., No. 87-1394

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before RUBIN, HIGGINBOTHAM, and HILL; ROBERT MADDEN HILL
• Citation: 831 F.2d 77
• Parties: 1988 Copr.L.Dec. P 26,195, 4 U.S.P.Q.2d 1715 LODGE HALL MUSIC, INC., Foreverendeavor Music and T.B. Harms Company, Plaintiffs-Appellees, v. WACO WRANGLER CLUB, INC., Claud W. Carter and Juanita Carter, Defendants-Appellants.
• Docket Number: No. 87-1394
• Decision Date: 28 October 1987

Page 77

831 F.2d 77 1988 Copr.L.Dec. P 26,195, 4 U.S.P.Q.2d 1715 LODGE HALL MUSIC, INC., Foreverendeavor Music and T.B. Harms
Company, Plaintiffs-Appellees,
v.
WACO WRANGLER CLUB, INC., Claud W. Carter and Juanita
Carter, Defendants-Appellants. No. 87-1394 Summary Calendar.
United States Court of Appeals,
Fifth Circuit. Oct. 28, 1987.

Page 78

Bates & Cates, John L. Bates, Waco, Tex., for defendants-appellants.

Jackson, Walker, Winstead, Cantwell & Miller, John B. Nelson, Dallas, Tex., Naman, Howell, Smith & Lee, Waco, Tex., Richard H. Reimer, Karen E. Sherman, Bernard Korman, New York City, for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, HIGGINBOTHAM, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge: ^*

Defendants appeal a summary judgment entered against them in a copyright infringement action. Because we find that there are outstanding questions of material fact that preclude summary judgment, we vacate the judgment and remand.

I.

Defendants own an establishment known as the Waco Wrangler Club in Waco, Texas. ¹ The Waco Wrangler Club serves alcoholic beverages and plays recorded music for the enjoyment of its patrons. Plaintiffs own the copyrights to a number of musical compositions. Plaintiffs claim that on the night of October 19, 1984, defendants caused to be played at the club four songs whose copyrights are owned by the plaintiffs ² in violation of their rights under the United States copyright laws. 17 U.S.C. Secs. 101-810.

It is a violation of a copyright in a musical composition to perform that work publicly without a license. 17 U.S.C. Sec. 106(4). An impermissible public performance includes playing songs on records in a bar or music club. See Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474, 480 (D.Del.1985). A copyright owner is entitled to recover for each infringement either actual damages and loss of profits or

Page 79

else statutory damages of at least $250 and not more than $10,000 per violation. 17 U.S.C. Sec. 504. Costs and reasonable attorney's fees are also recoverable at the court's discretion. 17 U.S.C. Sec. 505.

The American Society of Composers, Authors, and Publishers (ASCAP) was founded in 1914 in order to protect the rights of owners of musical copyrights. ASCAP is a non-exclusive licensing agent for the compositions of its members. ASCAP sells licenses to music clubs, bars, stores, television stations, and the like authorizing the non-dramatic performance of any and all of the musical compositions of ASCAP members. This allows the purchaser to avoid the cost of obtaining individual licenses from the owners of each song that may be performed and also provides owners of musical copyrights with a practical method of protecting their rights. Each of the plaintiffs is a member of ASCAP.

Over a period of time preceding this action, ASCAP approached the defendants on several occasions, both by mail and in person, seeking to induce them to purchase a license that would allow the Waco Wrangler Club to legally perform music copyrighted by ASCAP members. Despite ASCAP's warnings that the performance of such music without a license violated their members' copyrights and that those rights would be enforced, the defendants declined to purchase a license.

On October 19, 1984, two investigators hired by ASCAP entered the Waco Wrangler Club in order to obtain evidence of copyright infringement. The investigators allege that they were in the club from approximately 8:30 p.m. until 1:35 a.m. and that they wrote down the titles of the songs that they heard being performed. Among these were the four songs that form the basis of this suit.

Plaintiffs brought suit for copyright infringement. After discovery, the district court granted plaintiffs' motion for summary judgment and awarded statutory damages of $1,500 for each of the four copyright violations. The court also awarded plaintiffs attorney's fees. Defendant timely appealed the district court's judgment.

II.

A.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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). The defendants do not challenge the district court's legal conclusions, but object that there was an unresolved issue of material fact that precluded summary judgment. In reviewing the grant of summary judgment, we apply the same standard as did the district court, Gatx Aircraft Corp. v. M/V COURTNEY LEIGH, 768 F.2d 711 (5th Cir.1985), viewing the record in the light most favorable to the non-moving party. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); John v. State of Louisiana, 757 F.2d 698 (5th Cir.1985).

Although the moving party has the burden of showing the nonexistence of any issue of material fact, once this showing has been made, the burden is on the opposing party to show that summary judgment is inappropriate. "[T]he...