Milene Music, Inc. v. Gotauco

• Decision Date: 24 November 1982
• Docket Number: Civ. A. No. 80-0636,82-0032.
• Citation: 551 F. Supp. 1288
• Parties: MILENE MUSIC, INC., Blendingwell Music, Inc., MCA, Inc. and T.B. Harms Company, Plaintiffs, v. Elizabeth GOTAUCO, George Gotauco and M.A.P. Enterprises, Inc., Defendants. JAZZBIRD MUSIC, W.B. Music Corp., Famous Music Corp., T.B. Harms Co., M.C.A. Inc. and Milene Music, Inc., Plaintiffs, v. M.A.P. ENTERPRISES, INC., Elizabeth Gotauco, and George Gotauco, Defendants.
• Court: U.S. District Court — District of Rhode Island

551 F. Supp. 1288

MILENE MUSIC, INC., Blendingwell Music, Inc., MCA, Inc. and T.B. Harms Company, Plaintiffs, v. Elizabeth GOTAUCO, George Gotauco and M.A.P. Enterprises, Inc., Defendants.

JAZZBIRD MUSIC, W.B. Music Corp., Famous Music Corp., T.B. Harms Co., M.C.A. Inc. and Milene Music, Inc., Plaintiffs, v. M.A.P. ENTERPRISES, INC., Elizabeth Gotauco, and George Gotauco, Defendants.

Civ. A. Nos. 80-0636, 82-0032.

United States District Court, D. Rhode Island.

November 24, 1982.

COPYRIGHT MATERIAL OMITTED

Benjamin V. White, III, Vetter & White, Providence, R.I., for plaintiffs, Milene Music, Inc., Blendingwell Music, Inc., MCA, Inc., T.B. Harms Co., Jazzbird Music, W.B. Music Corp., Famous Music Corp. and M.C.A. Inc.

Paul J. DiMaio, Providence, R.I., for defendants, Elizabeth Gotauco, George Gotauco and M.A.P. Enterprises, Inc.

OPINION

SELYA, District Judge.

OVERTURE

These actions for monetary and injunctive relief based on alleged copyright infringement are before the Court on plaintiffs' motions for summary judgment and defendants' objections thereto. The cases were consolidated by order dated July 8, 1982 for the purpose of facilitating pre-trial discovery and consideration of these motions.¹ The motions, and the opposition thereto, have been fully briefed by the parties. Oral arguments were scheduled to be heard by the Court on November 10, 1982, at which time counsel for all parties elected to waive the same and to rest upon their respective briefs. Jurisdiction is based on 28 U.S.C. § 1338(a).

After examining the record, it appears that the score of this juridical libretto possesses a distinctive musicological tonality, which the Court will endeavor to capture and to summarize.

FIRST MOVEMENT

Each of the plaintiffs is a music publisher, and each is a member of the American Society of Composers, Authors, and Publishers (hereinafter "ASCAP"). The plaintiffs, through ASCAP, license copyrighted material to individuals and businesses wishing to perform the material in public, or to sponsor such performances.

The corporate defendant (hereinafter "M.A.P.") is the owner and operator of a popular local "watering hole"² which is located in Exeter, Rhode Island, offering food, drink, and live nocturnal entertainment to its patrons. Each of the individual defendants are shareholders and-or officers of M.A.P., and collectively manage its affairs.³

Until April 1, 1976, M.A.P. held a valid license from ASCAP permitting public performances of plaintiffs' compositions at the Covered Wagon. On or about April 1, 1976, this license was revoked for failure to pay license fees (amounting to $870.00) theretofore accrued. On numerous occasions thereafter, representatives of ASCAP offered to reinstate the license if the previously accrued fees owed by M.A.P. were paid. Defendants repeatedly rebuffed these requests for payment.⁴ On September 27, 1980 and again in early August of 1981, agents of ASCAP patronized the Covered Wagon, apparently as part of a surreptitious (but entirely legal) undercover investigation. During the visit of September 27, it was noted that the following compositions were performed by a band: "Blue Eyes Crying In The Rain", "Bad, Bad Leroy Brown", and "Tulsa Time". On the visit of August 1-2, 1981, the agents noted that live renditions were given of the following songs: "Peaceful Easy Feeling", "Me and You and a Dog Named Boo", "Tulsa Time", "Orange Blossom Special", and "Blue Eyes Crying In The Rain". At all times relevant hereto, plaintiffs (collectively) are and have been the proprietors of the copyrights for each and all of the works in question.⁵

SECOND MOVEMENT

The Copyright Act, 17 U.S.C. § 100 et seq. (hereinafter the "Act"), as recodified in 1976, provides in substance that any person who violates the exclusive rights of the copyright owner is an infringer of the copyright. 17 U.S.C. § 501(a). § 106 of the Act gives the owner of a copyrighted musical composition the exclusive right both to perform the work publicly and to authorize the public performance of the work. This framework enables the owner of the copyright to assign the licensing of public performances to others, such as ASCAP, on terms amenable to the copyright owner. George Simon, Inc. v. Spatz, 492 F.Supp. 836, 838 (W.D.Wis.1980); 1 M. Nimmer, Nimmer on Copyright § 8.11, at 8-115 (1982). It appears of record that ASCAP, in the case at bar, served as the intermediary for all plaintiffs in this regard.

To establish copyright infringement, the plaintiffs must establish the following elements: (i) the creation and originality of the compositions involved; (ii) compliance with all formalities required to secure a copyright under the Act; (iii) plaintiffs' proprietary right in and to the copyrights at issue; (iv) public performance of the songs for profit at the Covered Wagon; and (v) that the defendants had not received permission from the plaintiffs or their representatives for such performances. Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 912 (D.Conn.1980); Shapiro, Bernstein & Co. v. "The Log Cabin Club Association", 365 F.Supp. 325, 328 n. 4 (N.D.W.Va.1973); accord George Simon, Inc. v. Spatz, supra, at 838; Chess Music, Inc. v. Tadych, 467 F.Supp. 819, 821 (E.D.Wis.1979).

Since this matter comes before the Court on plaintiffs' motion for summary judgment, the burden is on the plaintiffs to establish that no genuine issue of material fact exists and that plaintiffs are entitled to judgment as a matter of law. Mack v. Cape Elizabeth School Board, 553 F.2d 720, 722 (1st Cir.1977); See Over The Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 819-20 (1st Cir.1980). If plaintiffs do so, and if the defendants cannot rebut this showing by establishing the existence of a genuine issue of material fact, or a divergent legal result, the plaintiffs are entitled to judgment as a matter of law. Over The Road Drivers, Inc. v. Transport Insurance Co., supra, 637 F.2d at 818. This Court is mindful of the graphic and sagacious observation of the illustrious now-incumbent Chief Judge of this Circuit to the effect that "Summary judgment is a judicial device available only when the effluent stream of controversy has been purified by the exclusion of any genuine issues of material fact...". General Electric Co. v. United States Dynamics, Inc., 403 F.2d 933, 934 (1st Cir.1968). It is with this standard as a guide that the Court now proceeds to apply the respirometer of judicial scrutiny to the instant motions and to the underlying pleadings and evidentiary accouterments. By affidavits of ASCAP agents, and by adroit use of Rule 36, Fed.R.Civ.P., the plaintiffs have confronted each element of their case. By failing to answer, object or otherwise respond to the requests for admissions promulgated under Rule 36, the defendants are, for purposes of this litigation, deemed to have admitted the facts and statements limned by the requests. Luick v. Graybar Electric Co., 473 F.2d 1360, 1362 (8th Cir.1973); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir.1966).

We turn, thus, to the uncontroverted affidavits and to the admissions of record to ascertain whether or not plaintiffs have thereby sustained their Rule 56 burden, that is to say, whether this particular effluent stream has been sufficiently purged.

The Court notes, first, that defendants are deemed to have admitted that each of the plaintiffs is, and has been at all times material hereto, the owner/proprietor of the copyright(s) attributed to it in the table set forth in footnote 5, supra. See Requests for Admissions numbered 1 through 6, inclusive (filed May 11, 1982) in C.A. No. 82-0032; Requests for Admissions numbered 1 thru 3 in C.A. No. 80-0636. No questions arise of record as to the validity of any of such copyrights or as to compliance with statutory formalities for registration. Once validity and compliance are established, then the Court can infer that the compositions are original and were penned by the authors set out in footnote 5, supra. Cf. Broadcast Music, Inc. v. Moor Law, Inc., 484 F.Supp. 357, 362 (D.Del.1980), holding to the effect that valid registrations are prima facie evidence of originality and authorship; accord Remick Music Corp. v. Interstate Hotel Co., 58 F.Supp. 523, 531 (D.Neb.1944), aff'd, 157 F.2d 744 (8th Cir. 1946), cert. denied, 329 U.S. 809 (1947). The admission by defendants that the plaintiffs are proprietors of valid copyrights, together with the itemization of exact copyright registration numbers in the complaints,⁶ attests to compliance with statutory registration.⁷ See Remick Music Corp. v. Interstate Hotel Co., supra, 58 F.Supp. at 531. The affidavit of B. Robert Gendreau, ASCAP's district manager, attests that all 6 of the songs which in the aggregate are the subject matter of these consolidated actions "... were in ASCAP's repertory on the dates of infringement." Gendreau Affidavit, ¶ 6. The first three elements of the plaintiffs' claims are thus assembled.

The uncontroverted affidavits verify the public performance of the copyrighted compositions. Two agents of ASCAP, Robert Pickett and Anne Kelly, attended a band performance at the Covered Wagon on September 27, 1980. Pickett's affidavit, contemporaneous notes and inspection reports, so-called, adequately evince that the following songs were performed that evening at the Covered Wagon as part of the scheduled for-profit entertainment: "Blue Eyes Crying In The Rain", "Bad, Bad Leroy Brown", and "Tulsa Time".

On August 1-2, 1981, Pickett and another agent of ASCAP, one Paul McDonald, revisited the Covered Wagon. On those evenings, virtually all of the copyrighted ballads (excepting only "Bad Bad Leroy Brown") were performed. The same documentation makes it abundantly clear that the Covered Wagon was open to the general public on these occasions, and that paying patrons from the general populace were in attendance. These assertions are further corroborated by...