US Songs, Inc. v. Downside Lenox, Inc., 1:90-CV-1330-RHH.

• Decision Date: 16 May 1991
• Docket Number: No. 1:90-CV-1330-RHH.,1:90-CV-1330-RHH.
• Citation: 771 F. Supp. 1220
• Parties: U.S. SONGS, INC., Brockman Music, Rate Music, Street Talk Tunes, E.M.I. April Music, Inc. and Colgems-E.M.I. Music, Inc., Plaintiffs, v. DOWNSIDE LENOX, INC. and Peter M. Peck, Defendants.
• Court: U.S. District Court — Northern District of Georgia

771 F. Supp. 1220

U.S. SONGS, INC., Brockman Music, Rate Music, Street Talk Tunes, E.M.I. April Music, Inc. and Colgems-E.M.I. Music, Inc., Plaintiffs, v. DOWNSIDE LENOX, INC. and Peter M. Peck, Defendants.

No. 1:90-CV-1330-RHH.

United States District Court, N.D. Georgia, Atlanta Division.

May 16, 1991.

COPYRIGHT MATERIAL OMITTED

Joyce B. Klemmer, Atlanta, Ga., for plaintiffs.

Michael W. Broadbear, Atlanta, Ga., for defendants.

ORDER

ROBERT H. HALL, Jr., District Judge.

This is a case alleging copyright infringement under Title 17, United States Code. Jurisdiction is vested with this Court pursuant to 28 U.S.C. § 1338(a). The case is before the Court on Plaintiffs' Motion for Summary Judgment. The Court GRANTS Plaintiffs' Motion.

BACKGROUND

Plaintiffs are songwriters and music publishers who are the owners of valid copyrights in the five musical compositions at issue in this lawsuit: "(They Long to Be) Close to You," "Hello," "Keep on Loving You," "Foolish Heart," and "It's Too Late." As such, Plaintiffs are all members of the American Society of Composers, Authors and Publishers ("ASCAP"), an unincorporated membership association of more than 45,000 writers and publishers of musical compositions. ASCAP operates as a performing rights licensing organization. Accordingly, each Plaintiff has granted to ASCAP a nonexclusive license to authorize the nondramatic public performance of that Plaintiff's copyrighted musical compositions.

Defendant Downside Lenox, Inc. is a Georgia corporation which owns, manages and operates a place of business for public entertainment and refreshment known as the Bucket Shop, located at 3475 Lenox Road, Atlanta, Georgia. Defendant Peter M. Peck is, and was at all relevant times, employed by Downside Lenox as Chief Executive Officer, his primary responsibility being the control, management, operation and maintenance of the corporation. Defendants regularly transmit musical compositions by a radio-over-loudspeakers system for the benefit of customers of the Bucket Shop.

The public area of the Bucket Shop consists of separate bar and dining areas, and in 1985 included one area in which live music was performed, and another in which a "radio-over-loudspeakers" system was used.¹ Accordingly, Defendants at that time entered into a licensing agreement with ASCAP authorizing Defendants to publicly perform at the Bucket Shop any or all of the copyrighted musical compositions in the ASCAP repertory, which, according to Plaintiffs, number some "hundreds of thousands" of compositions. Complaint, p. 3. In return for the license, Defendants agreed to pay appropriate annual license fees to ASCAP, as determined by ASCAP in light of the types of music provided by Defendants.

Subsequent to Defendants' and ASCAP's execution of the licensing agreement, Defendants decided not to continue providing live music, but rather to retain only the radio-over-loudspeakers system. Thereafter, Defendants claimed that the license fees sought by ASCAP were too high, and refused to pay their license fees due under the agreement. Following repeated notices, ASCAP on February 15, 1989 terminated the licensing agreement for default. Thereafter, ASCAP made repeated offers to reinstate Defendants' license in exchange for Defendants' payment to ASCAP of the license fees owed, but Defendants did not respond. ASCAP also repeatedly warned Defendants of their potential liability under the copyright law, to no avail.

On June 19, 1990, Plaintiffs commenced this lawsuit, alleging in their Complaint that Defendants infringed their copyrights on February 10, 1990 by publicly performing the compositions in question without the approval of either ASCAP or the individual owners of the copyrights. Specifically, Plaintiffs allege that Defendants, using their radio-over-loudspeakers system, retransmitted without permission a radio broadcast containing the five songs which are the subject of this lawsuit. Altogether, Plaintiffs thus allege five distinct incidents of infringement, giving rise to five causes of action. Plaintiffs in their Complaint seek an injunction pursuant to 17 U.S.C. § 502 restraining Defendants from publicly performing the musical compositions in question; statutory damages as provided for in 17 U.S.C. § 504 in the amount of $1,500.00 per infringement, for a total of $7,500.00.; and costs of the action, including reasonable attorney's fees, pursuant to 17 U.S.C. § 505. Currently, Plaintiffs have moved for summary judgment.

DISCUSSION

I. Standard of Review for Summary Judgment

This Court will grant summary judgment when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must demonstrate that the nonmoving party lacks evidence to support an essential element of her or his claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986), cert. denied, 484 U.S. 1066 (1988). The movant's burden is "discharged by showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. Once the movant has met this burden, the opposing party must present evidence establishing a material issue of fact. Id. The nonmoving party must go "beyond the pleadings" and present evidence designating "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553.

All evidence and factual inferences should be viewed in the light most favorable to the nonmoving party. Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.1987); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue is not genuine if it is unsupported by evidence or is created by evidence that is "merely colorable" or "not significantly probative." Id. at 250, 106 S.Ct. at 2511. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248, 106 S.Ct. at 2510. Thus, to survive a motion for summary judgment, the nonmoving party must come forward with specific evidence of every element essential to his or her case so as to create a genuine issue for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53; Rollins, 833 F.2d at 1528.

II. Application

In moving for summary judgment, Plaintiffs contend that the undisputed facts establish, first, that Defendants infringed Plaintiffs' copyrights, and second, that none of Defendants' claimed affirmative defenses apply to the present situation. As a result, Plaintiffs contend that they are entitled to judgment as a matter of law.

A. Evaluation of Facts

In support of their Motion for Summary Judgment, Plaintiffs contend that the undisputed facts establish that: (1) Plaintiffs are the owners of valid copyrights in the compositions in question; (2) on the night of February 10, 1990, Defendants, using a radio-over-loudspeakers system, retransmitted to their patrons a radio broadcast including those copyrighted compositions; and (3) Defendants were at the time unauthorized to retransmit Plaintiffs' copyrighted works.

In support of their version of the facts, Plaintiffs present the affidavits of two investigators establishing that Defendants, using a radio-over-loudspeakers system, broadcast the five musical compositions in question at the Bucket Shop on the date in question. Plaintiffs also present as evidence the affidavit of Mr. Gary Hartman, the Division Manager for ASCAP, and Manager for ASCAP's Atlanta District Office. In his affidavit, Mr. Hartman establishes both the facts that Plaintiffs are members of ASCAP, and that Defendants lacked permission to perform the compositions at issue.

In response, Defendants fail to go "beyond the pleadings" and present any evidence whatsoever indicating the existence of a material issue of disputed fact with regard to the events of February 10, 1990. First, Defendants do not dispute Plaintiffs' ownership of valid copyrights in the compositions in question. Furthermore, Defendants admit that "there is little doubt that these songs were played" at the Bucket Shop on the night in question. Defendants' Objection to Plaintiffs' Motion for Summary Judgment, p. 1. Finally, Defendants fail to present any evidence that they in fact were at the time authorized to retransmit the copyrighted works. Rather than disputing Plaintiffs' asserted facts, Defendants merely contest Plaintiffs' argument that the retransmission of songs via a radio-over-loudspeakers system constitutes an unauthorized "public performance" of the songs so as to violate the copyright statute.

The Court thus finds that there is no material issue of disputed fact regarding the events of February 10, 1990, and accepts Plaintiffs' version of those facts as undisputed. As a result, the only remaining questions before this Court involve the proper application of the law to these undisputed facts.

B. Application of Law

(1) Copyright Infringement

In an action for copyright infringement, 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 this action;

(4) that the compositions were performed publicly by the defendants;² and

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

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