Robert Stigwood Group Ltd. v. O'Reilly
| Decision Date | 19 January 1976 |
| Docket Number | 46,215,Nos. 45,D,850,s. 45 |
| Citation | 530 F.2d 1096 |
| Parties | The ROBERT STIGWOOD GROUP LIMITED et al., Plaintiffs-Appellants-Cross-Appellees, v. John T. O'REILLY et al., Defendants-Appellees-Cross-Appellants. TRACK MUSIC, INC., et al., Plaintiffs-Appellants-Cross-Appellees, v. CONTEMPORARY MISSION, INC., et al., Defendants-Appellees-Cross-Appellants. ockets 75--7076, 75--7077, 75--7090, 75--7091. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert C. Osterberg, New York City (Abeles Clark & Osterberg, John L. Eastman and Ina Lea Meibach, New York City, of counsel), for plaintiffs-appellants-cross-appellees.
William D. O'Reilly, Windham, N.H., for defendants-appellees-cross-appellants.
Before KAUFMAN, Chief Judge, and SMITH and GURFEIN, Circuit Judges.
'JESUS CHRIST SUPERSTAR' ('SUPERSTAR'), the successful rock opera, covered by copyrights, was publicly performed by the defendants without permission. They have been found to be infringers. We are the first appellate court to be asked to decide how statutory damages, 17 U.S.C. § 101(b), are to be assessed when there have been multiple unauthorized performances of an opera, several copyrights of which were 'infringed' at each performance. 1 The consolidated appeals are from two amended final judgments entered in the United States District Court for the District of Connecticut, Hon. Robert C. Zampano, Judge.
The joint plaintiffs, The Robert Stigwood Group Limited ('Stigwood'), Leeds Music Limited ('Leeds') and Leeds Music Corporation, own the United States copyrights in SUPERSTAR, and in separate musical compositions therein, as well as the performing stage rights. See Robert Stigwood Group Limited v. Sperber, 457 F.2d 50, 51--52 (2 Cir. 1972). The defendants are Roman Catholic priests who performed SUPERSTAR without obtaining a license either from the plaintiffs or from the American Society of Composers, Authors and Publishers (ASCAP). The District Court found that these performances infringed the plaintiffs' copyrights, 2 and issued a preliminary injunction enjoining the defendants from presenting any future performances of SUPERSTAR. Robert Stigwood Group Limited v. O'Reilly, 346 F.Supp. 376 (D.Conn.1972). 3 We affirmed this decision by unpublished order. No. 72--1826 (2 Cir. May 30, 1973). On November 13, 1974, the District Court granted plaintiffs' motion for summary judgment, and awarded the plaintiffs $22,800 in damages and $4700 for attorneys' fees.
The defendants were also charged in a separate action with infringing the copyrights of another rock opera, 'TOMMY.' The joint plaintiffs, Track Music, Inc., Fabulous Music Ltd. and New Ikon, Ltd., are the copyright proprietors of the separate Class (e) copyrights in the words and music of the twenty-six individual musical selections of which TOMMY is comprised, as well as of a Class (d) copyright for the 'dramatico-musical work' itself. 4 Plaintiff Track Music, Inc. owns the copyright on the entire work and is possessed of the rights for the United States under the copyrights in the individual musical selections. Upon discovery of defendants' uses of TOMMY in two unauthorized performances, plaintiffs brought an action in the District Court for Connecticut for copyright infringement by unauthorized performances and for unfair competition. The TOMMY action, like the SUPERSTAR action, was assigned to Judge Zampano who issued a preliminary injunction on July 26, 1972, enjoining unauthorized performances of TOMMY and of its twenty-seven separately copyrighted works. We affirmed. No. 72--1843 (2 Cir. May 30, 1973).
On a motion by the plaintiffs for summary judgment, the District Court, based on evidence at the hearing on the preliminary injunction and on affidavits, awarded damages of $2700 and counsel fees of $800. 5
Neither side appeals from the conclusion that the defendants are liable. Each party appeals from the judgments on damages. 6 To avoid confusion, we shall discuss the damage issue in SUPERSTAR, holding in abeyance to the end of the opinion the application of the rules thus formulated to TOMMY.
In deciding the damage issue in the SUPERSTAR action, Judge Zampano rejected the defendants' claim that the number of infringing performances may be established only by a trial. Noting that '(t)he defendants concede that they performed the rock opera at least 50 times' (emphasis added), he accepted 'fifty' 'as (the) baseline figure for the computation of damages.' The court then reduced the 'baseline figure of 50' to thirty-eight by excluding twelve performances given in Canada. The court held that 'each one of the defendants' performances of the plaintiffs' rock opera constituted a separate infringing transaction.' The court also found that '(a)t each of the performances, there were six copyrights owned by the plaintiffs which the defendants wilfully and unlawfully infringed.' The court then determined that since the plaintiffs had decided not to seek actual damages but to request their due 'in lieu of actual damages and profits' under the applicable provisions of the Copyright Law, 17 U.S.C. § 101(b), 7 The court did not, however, award the statutory minimum of $250 for each infringement provided in 17 U.S.C. § 101(b), but instead determined that '(u)nder all the circumstances of this case, it is the Court's considered opinion that a fair, reasonable, and just award for damages shall be a total of $22,800 for defendants' multiple infringements of plaintiffs' rock opera 'Jesus Christ Superstar." The court did not explain how the $22,800 figure was arrived at. 8
It is clear, however, that it believed that, in awarding 'in lieu' damages under the statute, the court was permitted to award what it thought fair, reasonable and equitable without the restraint of the statutory minimum of $250 for each infringement found.
Plaintiffs-appellants contend that the proper formula for 'in lieu' damages is rigidly prescribed by § 101(b) and that, in computing damages, the District Court should have (a) found that the defendants performed SUPERSTAR sixty rather than fifty times; (b) included the Canadian performances; (c) treated the performance rights in each of the six copyrights as separately infringed at each performance; and (d) applied the statutory minimum of $250 for each infringement. On this basis, plaintiffs-appellants claim damages as follows: at each performance, infringement of the performing rights of six separate copyrights at $250 each, or $1500, times sixty separate performances, for a total of $90,000.
The defendants-appellants on their cross-appeal contend that the total damages that should have been awarded in the SUPERSTAR action aggregate only $3800 instead of the $22,800 actually awarded. Their contentions are that (a) the Canadian performances are not infringements of the American copyrights; and (2) courts are not compelled, under the provisions of § 101(b), simply because multiple infringements are involved, to award more than they determine to be reasonable and just. They apparently arrive at the suggested figure of $3800 by treating each of thirty-eight performances as an 'infringing performance' with a recovery of $100 per performance.
The questions for decision are: (1) How many performances were given by the defendants and was the number undisputed for purposes of summary judgment? (2) Should the twelve Canadian performances be treated as infringements of United States copyrights and performing rights thereunder? (3) Was each infringing performance in the circumstances a separate infringement for the purpose of applying § 101(b)? (4) When a dramatico-musical work is covered by six separate copyrights, is an infringement by a single performance, which infringes each of the copyrights at the same time, a single infringement or six separate infringements?
On their motion for a preliminary injunction, plaintiffs introduced evidence showing that the defendants had given at least fifty-eight performances, and by later affidavit they showed sixty performances.
In plaintiffs' 'Statement of Facts Pursuant to Local Rule 10(a)3 as to Which There Is No Genuine Issue to Be Tried' they averred, supported by affidavits, that '(d)efendants performed Jesus Christ Superstar on at least sixty separate occasions without any authorization, utilizing the copyrighted material protected by the six copyrights therein.' The defendants did not rebut by affidavit that there had been at least sixty performances. The undisputed averment supports summary judgment for the plaintiffs on the basis of sixty rather than fifty performances. We hold that the District Court erred in taking 'the baseline figure of 50' simply because that figure had been conceded by the defendants.
It is agreed that there were twelve Canadian performances by the defendants, which Judge Zampano excluded in his calculations. The plaintiffs contend that the twelve performances in Canada should not have been excluded. They argue that in each instance the defendants assembled and arranged in the United States all the necessary elements for the performances in Canada, and then simply travelled to Canada to complete the performances. They urge that the acts in the United States constituted an 'integral part of the Canadian performances' and that the defendants should, therefore, be made to respond in damages. They rely on Sheldon v. Metro-Goldwyn Pictures Corp., 106 F.2d 45, 52 (2 Cir. 1939), aff'd, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825 (1940), and Famous Music Corp. v. Seeco Records, Inc., 201 F.Supp. 560, 568--69 (S.D.N.Y.1961). Their reliance is misplaced. In Sheldon the defendants made...
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