Major Bob Music v. Stubbs

• Decision Date: 29 March 1994
• Docket Number: No. CV 593-47.,CV 593-47.
• Citation: 851 F. Supp. 475
• Parties: MAJOR BOB MUSIC, Evanlee Music, EMI April Music, Inc., Merilark Music, Blue Moon Music, Famous Music Corporation, and Garwin Music, Inc., Plaintiffs, v. Gertrude STUBBS, Defendant.
• Court: U.S. District Court — Southern District of Georgia

851 F. Supp. 475

MAJOR BOB MUSIC, Evanlee Music, EMI April Music, Inc., Merilark Music, Blue Moon Music, Famous Music Corporation, and Garwin Music, Inc., Plaintiffs, v. Gertrude STUBBS, Defendant.

No. CV 593-47.

United States District Court, S.D. Georgia, Waycross Division.

March 29, 1994.

Joyce B. Klemmer, Smith, Gambrell & Russell, Atlanta, GA, for plaintiffs.

Dewey Hayes, Douglas, GA, for defendant.

ORDER

EDENFIELD, Chief Judge.

The Plaintiffs, alleging violations of federal copyright laws, have moved the Court for summary judgment. For the reasons stated herein, the Court GRANTS the Plaintiffs' motion.

BACKGROUND

The Plaintiffs, music publishers and owners of the copyrighted songs at issue, are members of the American Society of Composers, Authors and Publishers ("ASCAP").¹ The Defendant, Gertrude Stubbs, is the sole proprietor of the Buck and Doe Corral in Pearson, Georgia, a local "watering-hole" providing alcoholic and non-alcoholic drinks, snack foods, pool tables, a dance floor, juke-box and live entertainment.

Beginning in 1990, ASCAP repeatedly contacted the Defendant in an effort to convince her to purchase a license to perform ASCAP-copyrighted songs. After numerous letters, phone calls and visits and the Defendant's persistent refusal to purchase a license, ASCAP sent two investigators to the Buck and Doe Corral. On the evening of December 19, 1992, the investigators noted that a two-person band performed live renditions of three songs from the ASCAP repertoire.²

The Plaintiffs subsequently filed this suit, maintaining that the Defendant violated their rights as set forth in the Copyright Act of 1976, 17 U.S.C. § 101 et seq., by publicly performing copyrighted songs without a license to do so. The Plaintiffs seek injunctive relief, statutory damages, costs and attorney fees.

ANALYSIS

I. Standard to be Applied at Summary Judgment

The "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting FED.R.CIV.P. 56 advisory committee's note). The Court's analysis ends "where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law." Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d 1575, 1578 (11th Cir.1992); Real Estate Fin. v. Resolution Trust Corp., 950 F.2d 1540, 1543 (11th Cir.1992) (both citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). Thus, summary judgment is appropriate where the nonmovant "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, 477 U.S. at 322, 106 S.Ct. at 2552; Tidmore Oil Co. v. BP Oil Co./Gulf Prods. Div., a Div. of BP Oil Co., 932 F.2d 1384, 1387-88 (11th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 339, 116 L.Ed.2d 279 (1991). The substantive law governing the action determines whether an element is essential. E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1813, 108 L.Ed.2d 943 (1990). "A party seeking summary judgment 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, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; see Goree v. Winnebago Indus., Inc., 958 F.2d 1537, 1539 (11th Cir.1992). The movant typically must discharge this burden by producing evidence that negates an essential element of the nonmovant's claim. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Delancy v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536, 1554 n. 37 (11th Cir.1991). In some circumstances, however, the movant may meet this burden by "pointing to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Coats & Clark, 929 F.2d at 608; see Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552.

Only after the movant successfully discharges this initial burden, does the burden shift to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1583 n. 16 (11th Cir.1991); see Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992); Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir. 1991). A dispute of material fact "is `genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. "Factual disputes that are irrelevant or unnecessary will not be counted." United States v. Gilbert, 920 F.2d 878, 883 (11th Cir.1991) (citation omitted); see Useden v. Acker, 947 F.2d 1563, 1575 (11th Cir.1991). The nonmovant "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Liberty Lobby, 477 U.S. at 257, 106 S.Ct. at 2514; Gilbert, 920 F.2d at 882. If the nonmoving party's response to the summary judgment motion consists of nothing more than mere conclusory allegations, then the Court must enter summary judgment in the moving party's favor. Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir.1989). This means that the nonmovant "must set forth specific facts showing that there is a genuine need for trial," Johns v. Jarrard, 927 F.2d 551, 555 (11th Cir.1991) (citation omitted), and may not rely solely on the pleadings. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512; Johns, 927 F.2d at 556.

In assessing whether the movant is entitled to summary judgment in its favor, the district court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmoving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992); Ryder Int'l Corp. v. First Am. Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir.1991). In assessing the evidence, the Court must avoid weighing conflicting evidence, Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513; Ryder, 943 F.2d at 1523; Brown v. Hughes, 894 F.2d 1533, 1536 (11th Cir.), cert. denied, 496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990); Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986), or making credibility determinations. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th Cir. 1987). A mere "scintilla" of evidence supporting the opposing party's position, however, will not suffice. E.g., Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).

II. Plaintiff's Motion

A. Copyright Infringement

"The economic philosophy behind the constitutional clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors...." Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954). In order to achieve that end, Congress "granted valuable, enforceable rights to authors, publishers, etc., without burdensome requirements," Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939), among which is the right to sue for infringement. See 17 U.S.C. § 101 et seq. (1988); Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 912 (D.Conn.1980).

In order to establish liability for infringement of copyright in musical compositions, a plaintiff must prove the following elements:

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

(2) compliance with all formalities required to secure a copyright under Title 17, United States Code;

(3) that plaintiffs are the proprietors of the copyrights of the compositions involved in the action;

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

(5) that the defendant had not received permission from any of the plaintiffs or their representatives for such performance.

U.S. Songs, Inc. v. Downside Lenox, Inc., 771 F.Supp. 1220, 1224 (N.D.Ga.1991); Van Halen Music v. Palmer, 626 F.Supp. 1163, 1165 (W.D.Ark.1986); Boz Scaggs Music, 491 F.Supp. at 912.

The Plaintiffs in this case have met the first three elements by submitting copies of copyright registration certificates, which constitute prima facie evidence of the copyright's validity. 17 U.S.C. § 410(c) (1988). Moreover, the Defendant has not contested the validity or ownership of the Plaintiffs' copyrights. (Def.'s Resp. to Pls.' Mot. for Summ.J. at 4.)

With regard to the fourth element, it is well settled that investigators' affidavits that are uncontradicted are conclusive proof of performance. Broadcast Music, Inc. v. Larkin, 672 F.Supp. 531, 533-34 (D.Me. 1987); Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288, 1294 (D.R.I.1982). In this case, it is undisputed that live entertainment was provided on the evening of December 19, 1992. Furthermore, the Defendant has not offered any evidence to contravene the investigators'...