Broadcast Music, Inc. et al v. Bama Lanes, Inc. et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 12/12/13. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BROADCAST MUSIC, INC.;
BAMA LANES, INC. d/b/a The )
Blue Iguana Bar & Grill;
and STEVEN LANDER and TERRI )
LANDER, each individually, )
CIVIL ACTION NO.
Plaintiff Broadcast Music, Inc., a copyright licenser,
along with several copyright owners listed below, filed
this lawsuit against defendants Bama Lanes, Inc., Steven
Lander, and Terri Lander asserting copyright infringement,
in violation of the Copyright Act, 17 U.S.C. §§ 101-1332.
Specifically, they alleged that The Blue Iguana Bar and
defendants, played the following songs without permission
from BMI or the copyright owners:
All My Rowdy Friends (Have
Bocephus Music, Inc.
Harper Valley P.T.A.
Unichappell Music, Inc.
Capizzi Music Co.; Gary S.
Paxton Publications, Inc.;
and Dimensional Music
Nothin’ But a Good Time
Seven Bridges Road
Rondor Music International
Sympathy for the Devil
Abkco Music, Inc.
Landing in London
Songs of Universal, Inc.;
and Escatawpa Songs
Dirt Road Anthem
Publishing Corp.; Average
Joes Entertainment Group;
and Brantley Keith Gilbert
EMI Blackwood Music Inc.;
Publishing Corp.; Cory J.
Glerman; Lee Thomas
Miller; Sea Gayle Music
LLC; James Allen Otto; and
Jamey Van Johnson
Each of these owners has granted BMI the right to publicly
perform these compositions, to issue public performance
damages for infringement.
The plaintiffs’ filings reveal that BMI contacted
Steven Lander and Chris Zinn, a Bama Lanes employee,
repeatedly for almost two years prior to filing this
In each letter, BMI notified the defendants of
their obligations under copyright law and provided a means
to bring The Blue Iguana into compliance with the law. BMI
offers ‘blanket license agreements’ which allow a business
to pay a flat fee in exchange for the right to play any of
the works in BMI repertoire.
On February 5, 2013, BMI
estimated that a blanket license agreement for a bar the
size of The Blue Iguana would have cost $ 7,595 for the
two-year period starting March 1, 2011.*
In light of the
defendants’ non-participation in this lawsuit, the court
*In an earlier letter, BMI quoted a license fee of
$ 8,100 for the year. However, since the later quote was
provided after an investigator visited The Blue Iguana
and saw the size of the venue, the court will adopt that
estimated loss to BMI.
has every reason to believe that they still have not
purchased a license for The Blue Iguana.
The plaintiffs seek damages of $ 3,000 for each of the
ten infringements alleged in the complaint, for a total of
17 U.S.C. § 504(a) provides that “an infringer
of copyright is liable for ... (2) statutory damages, as
provided by subsection (c).” Subsection (c)(1) of § 504,
in turn, provides that “the copyright owner may elect, at
any time before final judgment is rendered, to recover,
statutory damages for all infringements involved in the
action, with respect to any one work ... in a sum of not
less than $ 750 or more than $ 30,000 as the court
In determining a just-damage award, “the court must
award an amount that will put the defendant on notice that
it costs more to violate the copyright law than to obey
it.” Dream Dealers Music v. Parker, 924 F.Supp. 1146, 1153
(S.D. Ala. 1996) (Vollmer, J.).
The $ 3,000 in per song
damages that BMI seeks is at the low end of the statutory
Furthermore, the court estimates that
licensing fees from March 2011 through the date of this
BMI’s requested $ 30,000 in total damages is
approximately three times that amount of licensing fees,
a multiplier which several courts have applied as an
Entertainment Complex, Inc., 198 F. Supp. 2d 1291, 1296
Therefore, the court finds that $ 30,000 is an appropriate
award in this case.
The plaintiffs also seek an injunction pursuant to 17
U.S.C. § 502.
Section 502(a) specifically authorizes this
court to “grant final injunctions on such terms as it may
deem reasonable to prevent or restrain infringement of a
copyright.” As far as the court can tell, the defendants
will not stop playing the plaintiffs’ music at The Blue
Iguana absent judicial intervention. Therefore, the court
will issue an injunction prohibiting the defendants from
“attorney’s fees are to be awarded to prevailing parties
only as a matter of the court’s discretion.” Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 (1994). “In this circuit,
controlled by consideration of the Johnson [v. Georgia Hwy.
Exp., Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)] factors.”
Cable/Home Commc’ns Corp. V. Network Prod., Inc., 902 F.2d
829, 853 (11th Cir. 1990); see also Montgomery v. Noga, 168
F.3d 1282, 1303 (11th Cir. 1999).
These factors are:
“(1) the time and labor required; (2)
the novelty and difficulty of the
questions; (3) the skill required to
perform the legal services properly; (4)
the preclusion of other employment by
the attorney due to acceptance of the
case; (5) the customary fee in the
community; (6) whether the fee is fixed
or contingent; (7) time limitations
imposed by the client or circumstances;
(8) the amount involved and the results
attorneys; (10) the ‘undesirability’ of
the case; (11) the nature and length of
the professional relationship with the
client; and (12) awards in similar
Johnson, 488 F.2d at 717–19.
“The fee applicant bears
the burden of ‘establishing entitlement and documenting
the appropriate hours and hourly rates.’” Simpleville
Music v. Mizell, 511 F. Supp. 2d 1158, 1162 (M.D. Ala.
2007) (Thompson, J.).
attorneys and a paralegal.
For James P. Pewitt, a
partner with over 20 years of experience, they seek fees
for .6 hours of work at a rate of $ 290 per hour.
Long, a fourth-year associate, they seek fees for
6.4 hours of work at a rate of $ 190 per hour.
Drake, a senior paralegal, they seek fees for 6.3 hours
of work at a rate of $ 150 per hour.
“To determine whether the hourly rate submitted by
the plaintiffs' attorneys is reasonable, the court will
attorneys, in addition to their experience, skill and
The rates proposed for Pewitt and Long
fall within the range of fees that this court have found
to be reasonable in previous cases.
See Adams v.
of Montgomery, 2013 WL 6065763 at *3 (M.D.
requested rate is inflated.
“The rate of attorney’s fees
is that of the place where the case is filed.” Cullens v.
Georgia Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir.
Although Drake’s rate may be standard for an
experienced paralegal in Birmingham, “Montgomery’s legal
rates are lower than Birmingham’s.” Adams at *3.
previous copyright cases, this court has provided fees
for paralegals at a rate of $ 100 per hour, and the court
Music, 511 F.
2d at 1163-64.
The court finds that the 7 attorney-hours and 6.3
paralegal-hours that plaintiffs’ counsel spent on this
case are reasonable.
As a result, the lodestar amount
for the fee award is $ 2,020.
Reviewing the Johnson
factors, the court does not find that an adjustment,
either upward or downward, is appropriate.
This is a
straightforward copyright-infringement case, which was
No complicated legal issues were raised and
the fee award is
a small proportion of the damages
The court further finds that it is reasonable to
award litigation costs of $ 56.64 for long distance calls
and filing fees.
Therefore, the court awards attorneys’
fees and expenses in the amount of $ 2,076.64.
A judgment will be entered in accordance with this
DONE, this the 12th day of December, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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