Broadcast Music Inc, et al v. Crocodile Rock Corp, et al

Filing

NOT PRECEDENTIAL OPINION Coram: FUENTES, SMITH and BARRY, Circuit Judges. Total Pages: 6. Judge: SMITH Authoring. (NDA regenerated with correction made reflecting page numbers on all pages of document)--[Edited 10/30/2015 by MB]

Case: 14-3891

Document: 003112116726

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Date Filed: 10/30/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3891
_____________
BROADCAST MUSIC, INC;
JAY-BOY MUSIC CORP.;
EVERGREEN COPYRIGHT ACQUISITIONS/AUDIGRAM, LLC,
d/b/a Audigram Songs, Inc;
CONCORD MUSIC GROUP, INC.,
d/b/a Jondora Music;
BREW MUSIC COMPANY
v.
CROCODILE ROCK CORPORATION,
d/b/a Crocodile Rock Cafe;
SUSAN CLARK;
MELISSA STERNER;
each individually;
JOSEPH CLARK
Crocodile Rock Corporation,
Susan Clark and Joseph Clark,
Appellants
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 5-12-cv-04945
District Judge: The Honorable Michael M. Baylson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 9, 2015

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Date Filed: 10/30/2015

Before: FUENTES, SMITH, and BARRY, Circuit Judges
(Filed: October 30, 2015)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
This is a copyright infringement case in which Broadcast Music, Inc. (BMI),
a copyright licensor with licensing rights to over 8.5 million songs, has sued
Crocodile Rock Corporation, et al, based on Crocodile Rock’s unlicensed public
performance of five songs for which BMI holds copyright licensing rights.
Crocodile Rock operates the Crocodile Rock Cafe, a nightclub in Allentown,
Pennsylvania, featuring live and recorded music. After repeatedly (but ultimately
futilely) attempting to convince Crocodile Rock to enter into a licensing
agreement, BMI sent an agent to the Cafe on two separate occasions to determine
whether Crocodile Rock was playing songs from BMI’s repertoire. The agent
discovered that one BMI song was performed at a concert in January 2012, the
ticket sales for which generated $15,000, and that four other BMI songs were
performed at a concert in July 2012, which generated total ticket sales of only
$180.


This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
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The District Court granted BMI’s motion for default judgment against
Crocodile Rock, and awarded BMI $35,000 in statutory damages – $7,000 per
infringement – plus more than $67,000 in costs and attorney’s fees. The District
Court later denied Crocodile Rock’s timely motion for reconsideration. Crocodile
Rock timely filed this appeal,1 in which it raises two2 related arguments for our
consideration: first, whether the District Court erred by awarding statutory
damages far in excess of the total ticket sales for the concerts where the
infringements occurred; and second, whether the District Court was obligated to
award only the statutory minimum in damages since the award was based on a
default judgment. As explained below, neither argument has merit. We will
affirm the District Court’s order.
Under the Copyright Act, a plaintiff may elect an award of statutory
damages “in a sum of not less than $750 or more than $30,000” per infringement,
instead of an award representing actual damages. 17 U.S.C. § 504(c)(1). Courts
have wide discretion in determining statutory damages. See id.; F.W. Woolworth

1

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331; this Court has
jurisdiction under 28 U.S.C. § 1291.
In its brief, Crocodile Rock enumerated a third issue – whether the District Court
erred when it entered default against Crocodile Rock for failure to retain counsel
and later refused to remove the entry after Crocodile Rock retained new counsel.
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Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-32 (1952). Indeed, so long as
the trial court’s statutory damages award falls within the statute’s prescribed limits,
our review of such award “is even more deferential than abuse of discretion.”
Broad. Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 487 (7th Cir. 1995); see
also Woolworth, 344 U.S. at 232 (“[I]n every case the assessment must be within
the prescribed limitations, that is to say, neither more than the maximum nor less
than the minimum. Within these limitations the court’s discretion and sense of
justice are controlling.” (quoting L.A. Westermann Co. v. Dispatch Printing Co.,
249 U.S. 100, 106-07 (1919))); Douglas v. Cunningham, 294 U.S. 207, 210 (1935)
(“[T]he[ ] employment of the statutory yardstick, within set limits, is committed
solely to the court which hears the case, and this fact takes the matter out of the
ordinary rule with respect to abuse of discretion.”). That the infringement was
unprofitable will not prevent a court from imposing a damages award anywhere
within statutory limits. Woolworth, 344 U.S. at 233 (“Even for uninjurious and
unprofitable invasions of copyright the court may, if it deems it just, impose a
liability within statutory limits to sanction and vindicate the statutory policy.”).
Crocodile Rock argues that an award for statutory damages “must have some
reasonable rational relation to the actual loss,” Appellant Br. 6, and that the District

But because Crocodile Rock failed to present an argument in support of the issue,
it is forfeited. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
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Court’s award of $7,000 per infringement lacked such a relation, especially in light
of the fact that the damages for the four songs performed at the July 2012 concert
($28,000) “were 155.5556 times” more than the total ticket sales for the concert
($180). Id. at 8. To support this proposition, Crocodile Rock points to an opinion
from the District of Minnesota remitting a jury’s statutory damages award of
$62,500 per infringement for 24 instances of non-commercial, willful
infringement, and holding that $2,250 per infringement is the maximum permitted
by the Due Process Clause. See Capitol Records, Inc. v. Thomas-Rasset, 799 F.
Supp. 2d 999, 1013-14 (D. Minn. 2011).

Besides the fact that this opinion

obviously does not control this Court, it lacks any persuasive force as it was
overturned on appeal. See Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899,
907 (8th Cir. 2012) (vacating the district court’s judgment and holding that a
statutory damages award from a previous jury trial of $9,250 per infringement was
consistent with Due Process).3
We conclude, therefore, that the District Court acted within its broad

3

Crocodile Rock also argues that a court may not award statutory damages above
the statutory minimum when it bases its award on a default judgment. Section 504
contains no such limitation. Rather, as explained above, if the award falls within
the limits set by the statute, “the court’s discretion and sense of justice are
controlling.” F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 232
(1952) (quoting L.A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 10607 (1919)).
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discretion in awarding statutory damages of $35,000, and will affirm the order of
the District Court denying Crocodile Rock’s motion for reconsideration.

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