Merrill v. County Stores, Inc.

• Decision Date: 17 September 1987
• Docket Number: Civ. No. 87-8-D.
• Citation: 669 F. Supp. 1164
• Parties: Bob MERRILL; Jule Styne; Rilting Music, Inc.; Revelation Music Publishing Corp.; Stonebridge Music; Lupercalia Music Publishing Co.; Impulsive Music; April Music, Inc.; Cherry Lane Music Publishing Co., Inc. v. The COUNTY STORES, INC.; James Infanti.
• Court: U.S. District Court — District of New Hampshire

669 F. Supp. 1164

Bob MERRILL; Jule Styne; Rilting Music, Inc.; Revelation Music Publishing Corp.; Stonebridge Music; Lupercalia Music Publishing Co.; Impulsive Music; April Music, Inc.; Cherry Lane Music Publishing Co., Inc. v. The COUNTY STORES, INC.; James Infanti.

Civ. No. 87-8-D.

United States District Court, D. New Hampshire.

September 17, 1987.

COPYRIGHT MATERIAL OMITTED

Ransmeier & Spellman by John C. Ransmeier, Concord, N.H., for plaintiffs.

Runyon and Sweeney, P.A. by Walter H. Sweeney, Peterborough, N.H., for defendants.

ORDER

DEVINE, Chief Judge.

Plaintiffs bring this copyright infringement action pursuant to the Copyright Act of 1976, 17 U.S.C. § 101 et seq. hereinafter "Copyrights Act" or "Act", asserting jurisdiction under 28 U.S.C. § 1338(a), in connection with their contention that their copyrighted songs are being broadcast in defendants' store without licensing fees having been paid. At bar are defendants' motion for summary judgment, Rule 56(b), Fed.R.Civ.P., plaintiffs' cross-motion for summary judgment, Rule 56(a), Fed.R. Civ.P., and defendants' objection thereto. Pleadings, deposition transcripts, answers to interrogatories, admissions, and affidavits having been filed with the Court, and the issues raised by this litigation being clear, the Court resolves the motions at bar on the documents as filed. See Rule 11(g), Rules of the United States District Court for the District of New Hampshire.

Factual Background

The focus of this litigation is The County Stores hardware store in Milford, New Hampshire ("Milford store"), a 20,000-square-foot facility owned and operated by corporate defendant The County Stores, Inc. ("TCS"). The Milford store has thirty-two employees and 1986 annual retail sales of approximately $2.5 million,¹ generated from approximately 13,000 square feet of floor space open to the public. Memorandum in Support of Defendants' Motion for Summary Judgment hereinafter "Defendants' Memorandum" ¶¶ 28, 36, at 8, 10. James Infanti, also a named defendant herein, is Treasurer of TCS, owner of two-thirds of the nonvoting stock of TCS, manager of the Milford store and three other TCS retail establishments, id. ¶ 25, at 8, and "primarily responsible for the management of the Milford store," Answer ¶ 5, at 5. Plaintiffs are music composers and publishers who license their copyrighted works through the American Society of Composers, Authors, and Publishers ("ASCAP") to individuals and businesses desiring to publicly perform or broadcast said works.

The Milford store has an employee intercommunication system which includes a radio receiver set up in such a manner that the store is able to broadcast radio station programs, including music, throughout the store. The store has done so, twenty-four hours per day, for more than seventeen years. Defendants' Memorandum ¶ 30, at 8-9. Broadcasts are occasionally momentarily interrupted via an automatic override so that employees can be paged to help customers. Additionally, the incoming radio signal is transmitted to customer telephone calls which have been placed on hold. Deposition of James Infanti at 40-41.

Until 1985, the intercommunication system incorporated ten or eleven speakers, four to six of which were in public areas of the store; however, in 1984 or 1985, the system was upgraded to include a slightly better radio receiver and six to eight additional speakers. All speakers are eight inches in size and recessed into the store's ceiling. Defendants' Memorandum ¶ 33, at 10.

Defendants have not received permission from any radio station to rebroadcast radio programs. Defendants have also failed to obtain any sort of ASCAP licensing agreement, despite having received bills and correspondence from ASCAP regarding copyright licensing since 1981. Id. ¶¶ 10, 17, 19-21, 39, at 4-11; Memorandum in Support of Plaintiffs' Cross-Motion for Summary Judgment hereinafter "Plaintiffs' Memorandum" at 5-6; Answer ¶ 11.

On the afternoon of September 6, 1986, ASCAP undercover investigators Robert and Paula Pickett surreptitiously (but entirely legally, see Milene Music v. Gotauco, 551 F.Supp. 1288, 1291 (D.R.I.1982)), visited the Milford store. While posing as customers, the Picketts ascertained the locations of the store's ceiling speakers, identified the call letters of the radio station being played, and made note of the titles of twenty-six songs broadcast between 3:04 and 4:55 p.m. See duplicate Affidavits of Paula Pickett and Robert M. Pickett at 2 & attached Exhibits A at 1-2. Each Pickett affidavit states: "I recall that the music was clearly audible throughout the store, so that I could easily hear and identify the performers of the songs which were sung." Id. at 2.

Among the songs the Picketts listed were six which form the basis of the instant litigation: "People", "Send in the Clowns", "Love on the Rocks", "We'll Sing in the Sunshine", "She's Always a Woman", and "Leaving on a Jet Plane", each of which is copyrighted by a plaintiff herein.² Plaintiffs contend that each unauthorized transmission of these songs constitutes a separate cause of action, six causes of action in total.

Rulings of Law

The Summary Judgment Standard

The standards governing consideration of motions for summary judgment are an old familiar song. Summary judgment is appropriate "if 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 a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The burden is upon the moving party to establish the lack of a genuine, material factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986), and the Court must view the record in the light most favorable to the nonmovant, according the nonmovant all beneficial inferences discernable from the evidence, Ismert & Assoc. v. New England Mut. Life Ins. Co., 801 F.2d 536, 537 (1st Cir.1986). When, as in the case at bar, both motions demonstrate basic agreement with regard to relevant legal theories and the underlying material facts of the dispute, cross-motions may be probative of a lack of a genuine factual dispute. United Nuclear Corp. v. Cannon, 553 F.Supp. 1220, 1226 (D.R.I.1982) (citing Bricklayers Int'l Union of America v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.1975)). And, if both parties' motions are based on the same legal theory, "a court's granting of one party's motion must perforce entail the denial of the adversary's motions." Id.

With these standards in mind, the Court considers the facts of this case against the backdrop of copyright infringement law.

Prima Facie Infringement of a Copyrighted Musical Work

The United States Constitution provides that Congress is empowered "to promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8. Pursuant thereto, the Copyrights Act grants to the owner of a copyrighted musical work the exclusive right to publicly perform or authorize another to publicly perform the owner's copyrighted work. 17 U.S.C. § 106(4). Violation of the exclusive rights granted by the Act constitutes copyright infringement, id. § 501(a), remediable by injunctive relief, id. § 502(a), damages—actual or statutory, id. § 504, and reimbursement of the full costs of bringing suit, including reasonable attorneys' fees, id. § 505. Based on this frame-work, a copyright owner may assign the licensing of public performances to others, such as ASCAP, on terms amenable to the copyright owner. See, e.g., Milene Music, supra, 551 F.Supp. at 1292 (and citations therein). Such occurred here.

A copyright owner alleging copyright infringement must establish five elements to establish a prima facie case: (i) the originality and authorship of the works involved, (ii) compliance with the formalities of federal copyright law, (iii) rightful proprietorship of the copyrights at issue, (iv) that the copyrighted works were performed publicly for profit, and (v) a lack of authorization by the owner or the owner's representative for the alleged infringer to publicly perform the works. See, e.g., Sailor Music v. Mai Kai of Concord, Inc., 640 F.Supp. 629, 632 (D.N.H.1986) (and citations therein). In the instant case, plaintiffs have supported each element of their prima facie case by reference to pleadings, deposition transcripts, answers to interrogatories, or affidavits. See Plaintiffs' Memorandum at 4-6, 9-10. Plaintiffs' assertions as to their prima facie case have gone uncontradicted, both in Defendants' Memorandum and in Defendants' Response to Plaintiffs' Cross-Motion for Summary Judgment ("Defendant's Response"). As defendants have failed to refute plaintiffs' properly-supported motion, the Court must grant summary judgment to plaintiffs as to having established a prima facie case of copyright infringement. See Donovan v. Agnew, 712 F.2d 1509, 1516 (1st Cir.1983); Over the Road Drivers, Inc. v. Transport Ins. Co., 637 F.2d 816, 818 (1st Cir.1980); Sailor Music v. Mai Kai of Concord, Inc., supra, 640 F.Supp. at 633.

The Section 110(5) Small Business Establishment Exemption

Defendants' liability, however, does not automatically flow from plaintiffs' establishment of a prima facie case of copyright infringement. Copyright owners alleging infringement must also contend with section 110(5) of the Act, codified at 17 U.S.C. § 110(5), which exempts certain small business establishments from having to contract with organizations such as ASCAP before publicly playing or rebroadcasting copyrighted musical works. This section exempts from infringement liability:

communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in

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