Odnil Music Limited et al v. Scheck et al

Filing 72

FINDINGS of FACT and CONCLUSIONS of LAW signed by Judge William B. Shubb on 7/20/06. The Findings and Recommendations filed 6/14/06 70 are ADOPTED in full. Plaintiffs shall recover from defendants Katharsis LLC, and William Joseph Scheck, jointly a nd severally, statutory damages in the amount of twelve thousands dollars ($12,000.00), which is an award of three thousand dollars ($3,000.00) for each of the four copyrighted musical works infringed at the Owl Club on the night of 9/2/04. Plaintiff shall also recover from Defendants Katharsis LLC, and William Joseph Scheck, jointldy and severally resonable attorneys fees and costs of suit, in an amount to be determined upon Plaintiffs post-trial motion for fees and memorandum of costs. (Mena-Sanchez, L)

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(PS) Odnil Music Limited et al v. Scheck et al Doc. 72 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 1 of 19 1 2 3 4 5 6 7 8 9 10 11 Plaintiffs, 12 v. 13 14 15 16 Defendants. 17 _____________________________/ 18 19 20 21 22 23 24 25 26 27 28 ----oo0oo---This matter came on regularly for trial before the court, sitting without a jury, on July 18, 2006. were represented by Alan M. Steinberg, Esq. Joseph Scheck appeared in propria persona. Plaintiffs KATHARSIS LLC, WILLIAM JOSEPH SCHECK and NATHANIEL CHRISTOPHER SCHECK, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---ODNIL MUSIC LIMITED and FIFTYSIX HOPE ROAD MUSIC LIMITED, NO. CIV. S-05-0545 WBS JFM Defendant William No appearance was made on behalf of defendants Katharsis LLC or Nathaniel Christopher Scheck. Because defendant Nathaniel Scheck failed to appear for trial, and the Magistrate Judge having heretofore made his Findings and Recommendations recommending that default judgment be entered against defendant Katharsis, plaintiffs 1 Dockets.Justia.com Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 2 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 elected to proceed in this trial against defendant William Scheck only. The court having received and considered the evidence, both oral and documentary, having read and considered the written submissions, and having heard the arguments of the parties, now makes the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure. FINDINGS OF FACT 1. The songs "EXODUS," "JAMMING," "AMBUSH IN THE NIGHT" and "AFRICA UNITE" (hereinafter collectively referred to as "the Copyrighted Works") are original works written by the late Bob Marley, afforded protection and properly registered under the copyright laws of the United States, 17 U.S.C. §§ 101, et seq. 2. Plaintiffs Odnil Music Limited and Fifty-Six Hope Road Music Limited own the Copyrighted Works. 3. Plaintiffs are all members of the American Society of Composers, Authors and Publishers ("ASCAP") to which they have granted the non-exclusive right to license nondramatic public performances of the Copyrighted Works. 4. Plaintiffs also granted ASCAP a non-exclusive right to enforce the copyrights in plaintiffs' songs, including but not limited to the Copyrighted Works. 5. On behalf of plaintiffs and its other members, ASCAP licenses thousands of music users, including radio and television networks, commercial radio and television stations, restaurants, nightclubs, and other establishments whose owners 2 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 3 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 desire to perform lawfully the copyrighted musical compositions in the ASCAP repertory. 6. At the time of the events which are the subject of this action, defendant Katharsis, LLC was a California limited liability company that, at all times pertinent, owned, controlled, managed, operated and maintained a place of business for public entertainment, accommodation, amusement and refreshment known as the "Owl Club," which is located at 109-111 Church Street, Roseville, California. 7. The Owl Club commenced operation under the ownership of Katharsis, LLC in January 2003. 8. At all times relevant to this action, defendants William Joseph Scheck and Nathaniel Christopher Scheck were the sole owners, members and managers of Katharsis, LLC. 9. At all relevant times, defendants William Scheck and Nathaniel Scheck each had a direct financial interest in the activities conducted at the Owl Club, including but not limited to the performance of musical works. They operated, or intended to operate, Katharsis, LLC and the Owl Club at a profit. 10. At all relevant times, defendants William Scheck and Nathaniel Scheck each exercised control over and management of the operations of the Owl Club, including but not limited to direction and supervision of employees, selecting entertainment at the Club, booking bands, and playing music and music videos on audiovisual equipment at the Club. 11. At all relevant times, defendants William Scheck and Nathaniel Scheck each had the authority to make decisions concerning the operation of the Owl Club, including the decision 3 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 4 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whether to obtain an ASCAP license for the Owl Club. 12. During the period August 4, 2003 through August 17, 2004, representatives of ASCAP repeatedly offered the Owl Club an ASCAP license. 13. Also during the period August 4, 2003 through August 17, 2004, ASCAP representatives on numerous occasions contacted defendants by letters, telephone calls, and personal visits as part of ASCAP's unavailing efforts to persuade defendants to obtain a license for the Owl Club, which would have enabled defendants to perform publicly and lawfully ASCAP's members' copyrighted songs, thereby avoiding this litigation. 14. ASCAP repeatedly advised defendants that in order to perform lawfully any of the copyrighted musical compositions in the ASCAP repertory at the Owl Club, permission is required from either ASCAP or the individual copyright owners directly. 15. Moreover, ASCAP repeatedly reminded defendants of their potential liability under the United States Copyright Law for the unauthorized public performance of copyrighted musical compositions at the Owl Club. Nonetheless, defendants repeatedly ignored and rejected ASCAP's offers of a license. 16. Defendants never obtained permission from ASCAP or plaintiffs to perform the Copyrighted Works, with the result that the performances of musical works in the ASCAP repertory have been, and continue to be, unlicensed. 17. The estimated license fees that defendants would have paid if the Owl Club had been properly licensed by ASCAP from August 4, 2003 to present are approximately $3,401.71 (including the applicable license fee of $1,224.00 for 2006). 4 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 5 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. The out-of-pocket expenses incurred by ASCAP to obtain the evidence of defendants' infringing conduct on which this action is based is $593.60. In addition, ASCAP incurred expenses of $758.42 in connection with a subsequent investigation to demonstrate defendants' continued infringing conduct, for a total of $1,352.02 in out-of-pocket expenses. 19. ASCAP engaged an independent investigator, Scott Greene, to visit the Owl Club on the night of September 2, 2004 when it was open to the public. During the course of his visit to the Owl Club, at approximately 8:30 p.m., Mr. Greene saw the bartender load a DVD into the DVD player located behind the bar. He observed on the television screen that the DVD was "loading." Mr. Greene then saw and heard the playing of a Bob Marley and the Wailers filmed concert performed publicly for the enjoyment of the Owl Club's patrons. Among the songs Mr. Greene saw and heard being performed on the Owl Club's television and speakers, Mr. Greene identified the Copyrighted Works ­ Bob Marley's songs entitled "EXODUS," "JAMMING," "AMBUSH IN THE NIGHT," and "AFRICA UNITE." 20. Later that evening, at approximately 10:45 p.m., Mr. Greene saw defendant Nathaniel Scheck re-start the DVD player and again saw and heard the same Bob Marley concert performed publicly for the enjoyment of the Owl Club's patrons on the television set and speakers. Mr. Greene saw and heard the four Copyrighted Works publicly performed for a second time before leaving the Owl Club at approximately 12:15 a.m. on September 3, 2004. 21. Mr. Greene made written notes of his observations 5 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 6 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at the Owl Club on the night of September 2, 2004, including a list of the titles of all songs performed during his visit to the Club, that he was able to recognize. Thereafter, on September 8, 2004, Mr. Greene prepared an "Investigator's Report" based upon his notes and recollection. 22. Defendants have presented no credible evidence to contradict Mr. Greene's detailed testimony as to public performance of the Copyrighted Works at the Owl Club on the night of September 2-3, 2004. 23. Defendants have also presented no evidence whatsoever, other than the fact that ASCAP is apparently operating under a sixty year old consent decree with the Department of Justice, to support William Scheck's repeated accusation that ASCAP is somehow involved in extortionate or criminal conduct. No evidence was presented, nor is there anything to suggest, that ASCAP is not acting in full compliance with the law. 24. All performances of copyrighted material described above occurred without a license from ASCAP, or permission obtained from either the plaintiffs or anyone acting on their behalf. 25. Defendants' conduct in causing the Copyrighted Works to be performed on their premises without a licence was willful. For more than a year before the infringing performances on which this action is based occurred, defendants knew that the Owl Club was not licensed to perform copyrighted musical compositions in the ASCAP repertory, and that the unlicensed performances of such music constituted copyright infringement, 6 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 7 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exposing them to liability and the risk of paying substantial monetary damages. 26. Nevertheless, defendants deliberately chose to disregard the rights and protection afforded to plaintiffs under the Copyright Law. Upon receiving the August 4, 2003 letter and license application from ASCAP, defendants discussed and decided not to enter into a license agreement with ASCAP. They persisted in that position despite ASCAP's repeated efforts to persuade defendants to obtain an ASCAP license. 27. Defendant William Scheck did more than simply ignore ASCAP's entreaties. It is undisputed that he threatened ASCAP representatives with physical bodily harm. On August 12, 2004, Tom Janci, an Area Licensing Manager for ASCAP visited the Owl Club to discuss licensing of copyrighted songs. William Scheck became verbally abusive, so Mr. Janci left the Owl Club. William Scheck followed Mr. Janci to his car. Mr. Janci locked himself in his car as William Scheck threatened him with bodily harm and demanded that he get out of his car and fight. Mr. Janci escaped unharmed. A few days later, on August 16, 2004, Dean Demerritt, a Director of Licensing for ASCAP, spoke with William Scheck on the telephone. William Scheck confirmed his intention of harming Mr. Janci and then threatened Mr. Demerritt and any other ASCAP representative that visits the Owl Club with bodily harm. William Scheck admitted to, and reaffirmed his threats in his deposition and trial testimony. 28. Defendant William Scheck also wilfully attempted to frustrate plaintiffs' ability to recover on any judgment against Katharsis LLC in this action, by taking steps to 7 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 8 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dissolve the corporation and transfer its liquor license on June 8, 2006, between the time the Magistrate Judge heard the motion to enter the default of Katharsis LLC and the time the Magistrate Judge' Findings and Recommendations were entered. 29. Following commencement of this lawsuit, ASCAP hired another independent investigator, Kevin McDonough, to visit the Owl Club on February 3, 2006. Mr. McDonough heard the playing of musical compositions performed publicly for the enjoyment of Owl Club's patrons, including the following copyrighted compositions in ASCAP's repertory: "JUST A LIL BIT" and "CANDY SHOP," written by Curtis James Jackson and Scott Spencer Storch and recorded by 50 Cent; "PANAMA" and "HOT FOR TEACHER," written by David Lee Roth, Alex Van Halen and Edward Van Halen and recorded by Van Halen; "BRASS MONKEY," written by Michael Lewis Diamond, Adam Keefe Horovitz, Rick Rubin and Adam Nathaniel Yauch and recorded by the Beastie Boys; and "WANTED DEAD OR ALIVE," written by John F. Bongiovi and Richard S. Sambora and recorded by Bon Jovi. 30. While the public performances of the Copyrighted Works on the night of September 2, 2004 provide the basis for the four counts of copyright infringement enumerated in the Complaint in this action, those performances coupled with the performances on February 3, 2006, and William Scheck's threats of violence, demonstrate defendants' willful disregard of all ASCAP members' rights, including plaintiffs', in violation of the Copyright Law. CONCLUSIONS OF LAW 1. This is an action for copyright infringement under 8 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 9 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Title 17 U.S.C. §§ 101, et seq. This court has subject matter jurisdiction of this action under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. §1338(a) (United States Copyright Law). Venue in this District is proper under 28 U.S.C. § 1400(a). 2. This court has personal jurisdiction over defendants. 3. The Copyright Act, 17 U.S.C. §§ 101 et seq., gives a copyright owner the exclusive right to perform its copyrighted song publicly, 17 U.S.C. § 106(4), and those who publicly perform the song without permission from the copyright owner thereby infringe the copyright, id., § 501(a). 4. The elements of copyright infringement by unauthorized public performance in violation of 17 U.S.C. §§ 101 and 106(4) are: (a) the originality and authorship of the compositions involved; (b) compliance with the formalities required to secure a copyright Under Title 17, United States Code; (c) plaintiffs' ownership of the copyrights of the relevant compositions; (d) defendants' public performance of the compositions; and (e) defendants' failure to obtain permission from the plaintiffs or their representatives for such performance. Jobete Music Co., Inc. v. Johnson Communications, Inc., 285 F. Supp. 2d 1077, 1082 (S.D. Ohio 2003); see also Almo Music Corp. v. 77 East Adams, Inc., 647 F. Supp. 123, 124 (N.D. Ill. 1986). 9 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 10 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. The uncontroverted evidence establishes the originality and authorship of the Copyrighted Works, plaintiffs' compliance with the statutory formalities of Title 17, and defendants' failure to obtain permission from plaintiffs or their representatives to perform those works. 6. Although defendant William Scheck has stated that he contests plaintiffs' ownership of the copyrights of the compositions in question, and further denies that those compositions, or any other copyrighted compositions, were performed at the Owl Club, plaintiffs have clearly met their burden of establishing these elements of their claim as well. 7. Copyright registration certificates constitute prima facie evidence of the facts stated therein. 17 U.S.C. § 410(c). Plaintiffs conclusively establish their ownership of valid copyrights in the four songs in suit by proffering into evidence the copies of copyright registration certificates and other pertinent documents. Flick-Reedy v. Hydro­Line Mfg. Co., 351 F.2d 546, 549 (7th Cir. 1965), cert denied, 383 U.S. 958 (1966); Interstate Hotel Co. v. Remick Music Corp., 157 F.2d 744 (8th Cir. 1946); Flyte Tyme Tunes v. Miszkiewicz, 715 F. Supp. 919 (E.D. Wis. 1989) (accepting ASCAP paralegal's affidavit and copies of copyright documents as proof of plaintiffs' ownership of valid copyrights). This establishes the first three elements of proof articulated by the court in Jobete Music Co., Inc., supra, 285 F. Supp. 2d at 1082. 8. The testimony of ASCAP's investigator, Scott Greene, proves performances of plaintiffs' songs at the Owl Club. See, e.g., Flyte Tyme Tunes, supra, 715 F. Supp. at 921; 10 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 11 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Milene Music v. Gotauco, 551 F. Supp. 1288, 1293 (D. R.I. 1982). 9. At the time of the performances of plaintiffs' four songs, none of the defendants had permission from plaintiffs or ASCAP, or any of ASCAP's members, or anyone acting of their behalf to perform publicly any of the musical compositions in the ASCAP repertory. Defendants concede this point. This establishes that performances of plaintiffs' songs were unauthorized. See, e.g., Flyte Tyme Tunes, supra, 715 F. Supp. at 921; Milene Music, supra, 551 F. Supp. at 1294. 10. Defendants have no excuse for not having obtained proper authorization to use copyrighted music at the Owl Club. Their reliance on Twentieth Century Music Corporation v. Aiken, 421 U.S. 151 (1975), is misplaced. That case applies only to the listening of radio broadcasts of copyrighted compositions. Likewise, 17 U.S.C. § 110 is inapplicable to the facts here. That statute makes an exception for the performance or display of musical works ". . . intended to be received by the general public, originated by a radio or television broadcast . . ." The public playing of a DVD is not excepted under either Aiken or § 110. 11. ASCAP undertook extensive efforts to inform defendants of their responsibilities under the Copyright Act and their potential liability. In light of ASCAP's numerous contacts with the defendants about the need for permission to perform publicly copyrighted music, and defendants' refusal to obtain a license for any performances of music, defendants' public performance of the Copyrighted Works on September 2, 2004 was deliberate and willful. International Korwin Corp. v. Kowalczyk, 11 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 12 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 855 F.2d 375, 381 (7th Cir. 1988); Swallow Turn Music v. Wilson, 831 F. Supp. 575, 579-580 (E.D. Tex. 1993). 12. Moreover, defendant William Scheck threatened ASCAP representatives with physical bodily harm on multiple occasions. Mr. Scheck was fully aware of the necessity to obtain permission to perform copyrighted music; yet, he responded to ASCAP's offers of a license with belligerence and blatant disregard for the Copyright Law. 13. "[C]opyright infringement is a tort, for which all who participate in the infringement are jointly and severally liable." Jobete Music Co., Inc., supra, 285 F. Supp. 2d at 1083. 14. Liability for copyright infringement extends to those who own or control the premises where the infringing conduct occurred, have the right and ability to supervise those responsible for the infringing conduct, and derive direct financial benefit from infringing performances on those premises. See, e.g., Ellison, supra, 357 F.3d at 1076; A & M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 239 (9th Cir. 1996); Broadcast Music, Inc. v. Blueberry Hill Family Restaurants, Inc., 899 F. Supp. 474, 480-81 (D. Nev. 1995); Milene Music, supra, 551 F. Supp. at 1295. 15. In this case, the company defendant, Katharsis, LLC, has failed to make an appearance and default judgment has been requested by plaintiffs. Katharsis, LLC's liability is nonetheless clear, as defendants admit it has owned and operated the Owl Club since January 2003. See Almo Music, supra, 647 F. 12 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 13 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supp. 124. 16. Mr. Greene's testimony establishes that defendant Nathaniel Scheck was responsible for the re-playing of the DVD containing the Copyrighted Works on the night of September 2-3, 2004. Defendant William Scheck was present at the Club at that time, and may also be liable for such conduct, even though he did not himself perform the copyrighted work. See, e.g., Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 913 (D. Conn. 1980); Jobete Music, supra, 285 F. Supp. 2d at 1083. 17. Defendant William Joseph Scheck has personal liability for the infringing performances of plaintiffs' Copyrighted Works under the doctrine of vicarious liability, the prerequisites for which are that: (1) the individual has the right and ability to supervise the infringing activity, and (2) the individual has a direct financial interest in such activities. Ellison, supra, 357 F.3d at 1076; see also Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d. 1159 (2d Cir. 1971); and Jobete Music, supra, 285 F. Supp. 2d at 1083. 18. As the sole members and owners of Katharsis, LLC, William and Nathaniel Scheck jointly exercised control over the daily operations of the Owl Club and make all business decisions, including what music is to be performed at the Club. Also, as Katharsis' sole members and owners, both Schecks earned money from alcohol sales at the Owl Club while music was being performed for the entertainment of the Club's patrons ­ a direct financial interest in the infringing activities that occurred as part of the operation of the business. Defendant William Scheck is, therefore, jointly liable with his son as an infringer. See, 13 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 14 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e.g., Marvin Music Co. v. BHC Ltd. Partnership, 830 F. Supp. 651, 655 (D. Mass. 1993) (the court held that "by virtue of his multiple roles in the club's management and ownership, [the individual defendant] had a substantial financial stake in the infringing activity, which undoubtedly attracted patrons to the Club"); Ellison, supra, 357 F.3d at 1076; A & M Records, supra, 239 F.3d at 1013; Fonovisa, Inc., supra, 76 F.3d 239. 19. The Copyright Law, 17 U.S.C. § 502(a), provides in pertinent part: Any court having jurisdiction of a civil action arising under this title may . . .grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of copyright. 20. Recognizing that plaintiffs in this type of action represent all of ASCAP's members, the courts now routinely enjoin defendants from performing any and all music in the ASCAP repertory. See Sailor Music v. IML Corp., 867 F. Supp. 565, 569-570 (E.D. Mich. 1994); Swallow Turn Music, supra, 831 F. Supp. at 581. Plaintiffs are entitled to similar relief here. 21. The Copyright Act, 17 U.S.C. § 504(c)(1), provides in pertinent part: [T]he copyright owner may elect . . . to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in that action, with respect to any one work . . . in a sum not less than $750 or more than $30,000 as the Court considers just. 22. "The court has wide discretion in determining the amount of statutory damages to be awarded, constrained only by the specified maxima and minima." Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir.1984); see, e.g., F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-32 (1952). 14 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 15 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23. In F. W. Woolworth Co. v. Contemporary Arts, Inc., the United States Supreme Court held that merely awarding plaintiffs damages equal to lost profits does not sufficiently deter infringements. Thus, courts should formulate a damage award that will achieve the deterrent purposes served by the statutory damages provision. The Supreme Court said: . . . [A] rule of liability which merely takes away the profits from an infringement would offer little discouragement to the infringers. It would fall short of an effective sanction for enforcement of the copyright policy. The statutory rule, formulated after long experience, not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct. The discretion of the court is wide enough to permit a resort to statutory damages for such purposes. Even for uninjurious and unprofitable invasions of copyright the court may if it deems it just, impose a liability within the statutory limits to sanction and vindicate statutory policy. Id., 344 U.S. at 233. 24. Another court has put it more bluntly: infringers should not be free to "sneer" in the face of the Copyright Act; courts must put defendants on notice that it costs less to obey the Copyright Act than to violate it. International Korwin Corp. v. Kowalczyk, 665 F. Supp. 652, 659 (N.D. Ill. 1987), aff'd, 855 F.2d 375 (7th Cir. 1988); see also Flyte Type Tunes, supra, 715 F. Supp. at 922 ("a violation of Copyright Law [is] a serious matter requiring deterrence . . ."). Recognizing the important deterrent purpose served by statutory damages, the courts routinely award as statutory damages in cases such as this amounts that are between two and three times license fees. See, e.g., Frank Music Corp. v Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1554 (9th Cir. 1989), cert. denied, 494 U.S. 1017 (1990) ("Statutory damages are available in order to effectuate two 15 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 16 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 purposes underlying the remedial provisions of the Copyright Act: to provide adequate compensation to the copyright holder and to deter infringement."); Broadcast Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 488 (7th Cir. 1995); International Korwin Corp., supra, 855 F.2d 375 (license fees owed would have been approximately $3,500; damages totaled $10,500); and Fermata Int'l Melodies, Inc. v. Champions Golf Club, Inc., 712 F. Supp. 1257, 1264 (S.D. Tex. 1989) (awarding $8,000 when $2,400 in license fees owed); Boz Scaggs Music, 491 F. Supp. 908 ($1,000 for each of 23 infringements; license fees would have totaled approximately $6,000). 25. In this case, because defendants repeatedly rejected and ignored ASCAP's offers of a license; acted as if they are not subject to the copyright laws; threatened ASCAP representatives with bodily harm on at least two occasions; wilfully attempted to frustrate plaintiffs' ability to recover any judgment against Katharsis LLC in this action by taking steps to dissolve the corporation and transfer its liquor license; and have continued to perform copyrighted works in the ASCAP repertory even after the filing of this lawsuit and as recently as February 3, 2006, defendants are willful infringers. 26. Given the defendants' blatantly willful conduct, an appropriate statutory damages award in this case is $3,000.00 per infringement for a total of $12,000.00 (approximately four times the license fees "saved") -- well within the statutory range of $750 to $30,000 per infringement under 17 U.S.C. §504(c)(1). This amount will hopefully serve as a deterrent to defendants' further infringing conduct and serves as well the 16 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 17 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 other objectives of the Copyright Law. To award less would reward defendants for their deliberate failure to comply with the law and send the wrong message to other potential infringers. 27. The Copyright Act provides for the imposition of costs and attorneys' fees in favor of the prevailing party: In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. 17 U.S.C. § 505. 28. "Plaintiffs in copyright actions may be awarded attorney's fees simply by virtue of prevailing in the action: no other precondition need be met, although the fee awarded must be reasonable." Frank Music Corp., supra, 886 F.2d at 1556. See also Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). 29. In Milene Music, Inc., on facts very similar to this case, the Rhode Island District Court concluded that: . . . The defendants have deliberately and knowingly infringed upon plaintiffs' copyrights; and subsequent to such infringement, have forced the plaintiffs to engage lawyers and to resort to the courts to enforce the proprietary interests in the copyrights. The defendants, in the court's view, have come forward with no justification for their actions, nor any colorable grounds upon which defense or mitigation could be predicted. The Court believes that this litigation fairly cries out for an award of attorneys' fees. 551 F. Supp. at 1298. 25 30. Here, defendants knowingly and deliberately 26 infringed upon plaintiffs' copyrights, continue to perform 27 copyrighted materials in the ASCAP repertory, refused to obtain 28 17 Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 18 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permission to perform copyrighted materials, threatened ASCAP representatives with bodily harm, and forced this matter to be litigated through trial. Plaintiffs are therefore entitled to recover reasonable attorneys' fees and costs. 31. The precise amount of fees and costs incurred by plaintiffs shall be determined by this court upon plaintiffs' post-trial motion in accordance with Local Rule 54-293. 32. 28 U.S.C. § 1961 specifies that "[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court." Plaintiffs are entitled to post-judgment interest on the monetary award. IT IS THEREFORE ORDERED THAT: 1. The Findings and Recommendations of the Magistrate Judge, filed June 14, 2006, are adopted in full. 2. Defendants Katharsis, LLC, and William Joseph Scheck, and all persons in active concert or participation with one or both of them, are hereby permanently enjoined and restrained: (a) from publicly performing, without a license to do so, the musical compositions in the repertory of the American Society of Composers, Authors & Publishers ("ASCAP"), including but not limited to the following four copyrighted musical compositions: "AFRICA UNITE." (b) from causing or permitting any of those musical compositions to be publicly performed, without a license to do so, in, at, or by the Owl Club, or any other business owned, controlled, operated, maintained, or conducted, in whole or in 18 "EXODUS," "JAMMING," "AMBUSH IN THE NIGHT," and Case 2:05-cv-00545-WBS-EFB Document 72 Filed 07/21/2006 Page 19 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 part, directly or indirectly, by one or more of the Defendants; (c) from aiding or abetting the unlicensed public performance of any of those musical compositions; and (d) from otherwise infringing the copyright in any of those musical compositions. 3. Plaintiffs shall recover from Defendants Katharsis LLC, and William Joseph Scheck, jointly and severally, statutory damages in the amount of twelve thousand dollars ($12,000.00), which is an award of three thousand dollars ($3,000.00) for each of the four copyrighted musical works infringed at the Owl Club on the night of September 2, 2004. 4. Plaintiffs also shall recover from Defendants Katharsis LLC, and William Joseph Scheck, jointly and severally, reasonable attorneys' fees and costs of suit, in an amount to be determined upon plaintiffs' post-trial motion for fees and memorandum of costs. 5. Plaintiffs shall further recover from Defendants Katharsis LLC, and William Joseph Scheck, jointly and severally, interest on the aforementioned statutory damages, costs, and attorneys' fees from the date of entry of judgment at the applicable statutory rate. LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: July 20, 2006 19

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