Broadcast Music, Inc. et al v. Carey-On Saloon, LLC et al

Filing 38

ORDER granting 24 Motion for Summary Judgment, by Judge Raymond P. Moore on 2/7/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02109-RM-MJW
BROADCAST MUSIC, INC.,
JOHNNY BIENSTOCK MUSIC,
SONY/ATV SONGS LLC d/b/a SONY/ATV TREE PUBLISHING,
SHOWBILLY MUSIC,
BOCEPHUS MUSIC, INC.,
TOKECO TUNES, and
WACISSA RIVER MUSIC, INC.,
Plaintiffs,
v.
CAREY-ON SALOON, LLC d/b/a CAREY-ON SALOON, and
LESHAWN RENEE CAREY, individually,
Defendants.
______________________________________________________________________________
ORDER GRANTING
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 24)
______________________________________________________________________________
THIS MATTER comes before the Court on Plaintiffs’ Motion for Summary Judgment
(“Motion”) (ECF No. 24) on their action for copyright infringement under 17 U.S.C. § 101 et
seq. (“Copyright Act”). Plaintiffs allege they own copyrights on certain musical compositions,
or the right to license the public performance rights of such copyrighted compositions, which
were infringed by Defendants’ unauthorized public performance of seven musical compositions.
The Court has jurisdiction pursuant to 28 U.S.C. § 1338(a). Upon consideration of the Motion
and other papers filed, and the applicable law, the Motion is granted for the reasons stated herein.

I. FACTUAL BACKGROUND
Plaintiff Broadcast Music, Inc. ("BMI") is a “performing rights society” which licenses
the right to publicly perform copyrighted musical compositions on behalf of the owners of these
works. The other Plaintiffs are copyright owners (“Owners”) of musical compositions from
whom BMI acquired the non-exclusive public performance rights to the seven musical
compositions at issue in this case: American Soldier; Call Me the Breeze; Courtesy of the Red,
White and Blue; Neon Moon; Okie from Muskogee; Whiskey Bent and Hell Bound; and Who’s
Your Daddy (collectively, the “Seven Compositions”). Each of the Seven Compositions has
been registered with the Copyright Office. By means of “blanket license agreements,” BMI
grants to users, such as owners and operators of concert halls, restaurants, nightclubs and hotels,
the right to publicly perform copyrighted works in BMI’s repertoire, including the Seven
Compositions.
Defendant Carey-On Saloon, LLC (“Defendant LLC”) owns, operates and has a direct
financial interest in the Carey-On Saloon located at 6829 Space Village Avenue, Colorado
Springs, Colorado. Defendant LeShawn Renee Carey (“Defendant Carey”) is sole owner of
Defendant LLC, owner of the Saloon, and responsible for virtually every aspect of the Saloon’s
operation.
Prior to June 2011, Defendant LLC held a license (“Prior License”), signed by Defendant
Carey, for the public performance of music in BMI’s repertoire at the Saloon when it was located
at 3350 N Chestnut Street, Colorado Springs, Colorado (“Prior Saloon”). When the Prior Saloon
stopped operating, the Prior License was cancelled.

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On or about June 2011, BMI learned that the Saloon had opened at Space Village
Avenue. From June 2011 forward, BMI repeatedly contacted Defendants and informed them
they needed to obtain permission for public performances of copyrighted music. BMI also
offered to enter into a license agreement with Defendants, which they declined to accept. On
October 5, 2011, BMI instructed Defendants to cease and desist from public performances of
music licensed by BMI. Thereafter, BMI again notified Defendants they needed to obtain a
license for their music use. Although Defendants did not obtain a license from BMI, they did
have a license to perform music through the American Society of Composers, Authors and
Publishers (“ASCAP”) (another performing rights society) and for the jukebox utilized at the
Saloon.
On April 19, 2012, Defendants had the right and ability to direct and control the Saloon’s
activities. On that night, the Saloon was open to the public and BMI sent investigator Daniel
Topping to generate an audio recording of the songs played at the Saloon that night along with a
written report. Investigator Topping was unable to identify the names of any of the songs
performed while he was present at the Saloon but was able to identify two of the artists from the
songs he heard that night. Investigator Topping also identified the disc jockey and Karaoke
performer as “Annie,” Anne Gavin, whom Defendants had instructed to play only music licensed
by ASCAP. Defendant Carey was present that night but claims not to know whether those
instructions were followed.
Investigator Topping submitted the audio recording to BMI. The recording was, in turn,
submitted to BMI Performance Identification employee Joannah Carr who listened to the
recording to identify any recorded musical works and any live performances. Based on

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Employee Carr’s knowledge of the genre of music contained in the recording, she identified the
511 songs performed that night at the Saloon, which included the Seven Compositions.
Defendants had no license to perform the Seven Compositions. Further, BMI had not
issued a license to any person authorizing the performance of any of the Seven Compositions at
the Saloon. There is also no evidence that the Owners of any of the Seven Compositions issued
such a license to any person. If Defendants had entered into a license agreement with BMI in
June 2011, when BMI first contacted them, the estimated license fees between July 2011 and
June 2013 would have been approximately $2,610.00.
II. ANALYSIS
“Summary judgment is appropriate if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” E.E.O.C. v.
Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1116 (10th Cir. 2013) (internal alterations and
quotation marks omitted). In evaluating the summary judgment motion, the court “view[s] the
facts, and all reasonable inferences those facts support, in the light most favorable to the
nonmoving party.” Simmons v. Sykes Enter., Inc., 647 F.3d 943, 947 (10th Cir. 2011). If there is
no genuine issue of material fact in dispute, the Court determines the correct application of the
substantive law and examines the factual record and reasonable inferences therefrom in the light
most favorable to the nonmoving party. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., supra at
1116; Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246 (10th Cir. 2010).
At the summary judgment stage, an affidavit is proper if its contents – the eyewitness
account of the affiant – are admissible. Bryant v. Farmers Ins. Exchange, 432 F.3d 1114, 1122
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Investigator Topping’s report listed 52 songs instead of 51, but the Court finds this “difference” immaterial under
the facts and circumstances of this case.
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(10th Cir. 2005). The affidavit may not contain expert testimony unless the affiant has first been
designated an expert witness under Fed.R.Civ.P. 26(a)(2). Id. at 1122. Any non-expert
testimony must comply with Fed.R.Evid. 701, i.e., rationally based on the witness’s perception,
helpful, and not based on scientific, technical, or other specialized knowledge. Id. at 1122-1123.
A.

The Copyright Claim.

The owner of a copyright has the exclusive right to perform or authorize others to
perform the copyrighted work. 17 U.S.C. § 106. In order to establish a copyright infringement,
the plaintiff must prove the following five elements: (1) originality and authorship of the
copyrighted works involved; (2) compliance with the formalities of the Copyright Act; (3)
proprietary rights in the copyrighted works involved; (4) public performance of the compositions
involved; and (5) lack of authorization for public performance. See Diversey v. Schmidly, 738
F.3d 1196, 1204 (10th Cir. 2013); e.g., Broadcast Music, Inc. v. McDade & Sons, Inc., 928
F.Supp.2d 1120, 1127 (D.Ariz. 2013); A & N Music Corp. v. Venezia, 733 F.Supp. 955, 956
(E.D.Pa. 1990); Broadcast Music, Inc. v. Pine Belt Invest. Dev., Inc., 657 F.Supp. 1016, 1020
(S.D.Miss. 1987); Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 912 (D.Conn. 1980).
The first three requirements of authorship, copyright, and ownership are undisputed by
Defendants and supported by the Wolfe Declaration and attachments. Similarly, the fifth
requirement of unauthorized performance is established by the Stevens Declaration and its
supporting documentation, which also stands unrefuted. Defendants assert the only barrier to
Plaintiffs proving infringement is the fourth requirement that there was public performance of
the Seven Compositions.

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To establish public performance, Plaintiffs rely on investigator Topping’s visit to the
Saloon and audio recording and Employee Carr’s review of the audio recording, as set forth in
their declarations and accompanying reports. Defendants, however, contend Plaintiffs are
precluded from using Employee Carr’s declaration as she is an expert, and her identification of
the Seven Compositions constitutes an expert opinion under Fed.R.Evid. 702 for which no
required expert designation and report have been made. Defendants argue that Employee Carr
“obviously” has special skills and knowledge because she is capable of identifying any recorded
musical work and live performances, i.e., hundreds of thousands of musical compositions. Not
surprisingly, relying primarily on Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d
1148 (9th Cir. 2012), Plaintiffs contend Employee Carr’s declaration and report are not expert
testimony but simply her percipient observations of the Seven Compositions and declaration to
that effect. The Court agrees.
In Range Road Music, Inc., supra, the copyright holders’ evidence of infringement
consisted primarily of an investigator’s report and testimony of his visit to the defendants’
establishment. During his visit, the investigator identified some songs himself and some songs
through titles on a CD jewel case. The live band also announced several of the compositions
they played. The defendants argued the district court erred in allowing the investigator’s
identification because it was expert testimony by a lay witness. On appeal, the Ninth Circuit
found to the contrary:
[investigator’s] report and declaration contained his competent percipient witness
testimony as a visitor to the Long Beach Roscoe’s [the establishment].
Fed.R.Evid. 701. Identifying popular songs does not require “scientific, technical,
or other specialized knowledge.” Fed.R.Evid. 702. On the contrary, identifying
music is a reflexive daily process for millions of radio listeners, amateur karaoke
singers, and fans of Name That Tune reruns.
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Id. at 1153 (quotation marks in original). The court also cited to Fed.R.Evid. 701’s advisory
committee’s note “that the distinction between lay and expert witness testimony is that lay
testimony results from a process of reasoning familiar in everyday life . . . .” Range Road Music,
Inc., supra at 1153.
Defendants argue Range Road Music, Inc., supra, is distinguishable because Employee
Carr was not a percipient witness as a visitor to the Saloon and because the case is contrary to
controlling law, relying primarily on James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d
1207, 1214 (10th Cir. 2011). The Court is unpersuaded. Employee Carr was undisputedly a
percipient witness as to the contents/sounds of the audio recording, of which there is also no
dispute regarding its authenticity or otherwise. Further, James River Ins. Co., supra, and other
Tenth Circuit decisions do not require a contrary finding.
Specifically, in James River Ins. Co., supra, the Tenth Circuit stated that lay witnesses
may not express an opinion on “matters which are beyond the realm of common experience and
which require the special skill and knowledge of an expert witness.” Id. at 1214 (quotation
marks omitted). Such witnesses may, however, “offer observations that are common enough and
require a limited amount of expertise, if any.” Id. (internal alterations and quotation marks
omitted). The Tenth Circuit also illustrated the difference between Rules 702 and 701 with
Bryant v. Farmers Ins. Exchange, supra, and LifeWise Master Funding v. Telebank, 374 F.3d
917 (10th Cir. 2004). In Bryant, testimony concerning elementary mathematical operations was
admissible as lay opinion because “a simple average of 103 numbers, though technically a
statistical determination, [was] not so complex a task” as to require an expert opinion “in order to
deem the evidence trustworthy.” Bryant, supra at 1124. In contrast, in LifeWise, testimony
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about a damages model which concerned moving averages, compounded growth rates, and Scurves was required to be offered by expert and not lay opinion. LifeWise, supra at 928-929; see
Sperry v. Werholtz, No. 10-3145, 413 Fed. Appx. 31, 35-38, 2011 WL 489826, at *3-6 (10th Cir.
Feb. 14, 2011) (lay opinion admissible where made with personal knowledge based on witness’s
job responsibilities and experience).
In this case, Employee Carr’s declaration more closely resembles the type of testimony in
Bryant than in LifeWise. Here, the identification of popular songs (the Seven Compositions) is
well within the common experience or observations of – or could be reached by – an ordinary
person. Employee Carr had to do nothing more than to listen to the audio recording to determine
what song was being sung or played. This task required no scientific, technical or other
specialized knowledge. In this regard, Defendants’ Response provides confirmation of the
ordinary nature or common experience of song identification performed at commercial Karaoke
sessions. In a needlessly pejorative description of Karaoke, Defendants describe it as
“a bunch of drunk amateur singers performing hit songs in public to embarrass themselves.”
(ECF No. 31, page 2, emphasis added.) Similarly, Defendant Carey’s Affidavit refers to
Karaoke as a process “whereby patrons of a bar sing along to music. … Obviously alcohol can
[a]ffect the quality of singing.” (ECF No. 31-1, ¶8.)
It hardly seems credible to contend that expert testimony is required to identify “hit
songs.” Songs are “hits” because they are widely known and popular among the general public.
And, the notion that bar patrons, particularly those who might favor one or more alcoholic
beverages, would be expected to know readily and sing along with such songs cuts against the
conclusion that the identification of such songs is a matter reserved solely for expert testimony.

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Employee Carr’s declaration is properly considered and unrefuted. Accordingly, Plaintiffs have
established their copyrights were infringed as to the Seven Compositions. In light of this
determination, the Court need not reach Plaintiffs’ alternate argument that Employee Carr’s
declaration constitutes an admissible business record.
B.

Vicarious Liability of Defendants.

Under the Copyright Act, a person may be secondarily liable for copyright infringement
even though that person did not himself or herself perform the protected work. E.g., MGM
Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005); Diversey v. Schmidly, 738 F.3d at 1204;
La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1181 (10th Cir. 2009). “Vicarious
liability attaches when the defendant has the right and ability to supervise the infringing activity
and has a direct financial interest in such activities. A defendant may be vicariously liable even
when he or she is not aware of the infringing activity.” Diversey v. Schmidly, supra at 1204
(internal quotation marks and citation omitted); see 1-800-Contacts, Inc. v. Lens.com, Inc., 722
F.3d 1229, 1249 (10th Cir. 2013) (discussing secondary liability under Lanham Act). Vicarious
liability may also be found even when the defendant lacks knowledge of the copyrighted
compositions to be played or any control over their selection by the direct infringer, Shapiro,
Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (2nd Cir. 1963); lacks any intention to
infringe, id at 308; or instructs the performers to perform no infringing material, Walden Music,
Inc. v. C.H.W., Inc., No. 95-4023-SAC, 1996 WL 254654, at *4 (D.Kan. April 19, 1996). See
also, e.g., Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262-263 (9th Cir. 1996) (cited with
approval by the Tenth Circuit in Diversey v. Schmidly, supra); Swallow Turn Music v. Wilson,
831 F.Supp. 575, 578-579 (E.D.Tex. 1993) (liability attached despite band’s contractual

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agreement not to perform unlicensed songs); 2 Howard B. Abrams, Law of Copyright § 14:52
(2013) (vicarious liability of controlling persons).
Defendants did not perform the copyrighted songs, but are alleged to be vicariously liable
as the owners and operators of the Saloon in which the songs were performed. Defendants both
admittedly had the right and ability to direct and control the activities of the Saloon on the night
of April 19, 2012 and, accordingly, the performance of the Seven Compositions. Defendant LLC
also admittedly had – and has – a direct financial interest in the Saloon and, concomitantly, in its
activities. Accordingly, the Court finds Defendant LLC is vicariously liable for the copyright
infringement which occurred at the Saloon.
Defendant Carey’s financial interest in the Saloon/Defendant LLC, however, requires
further examination. Defendants’ Response was silent on the issue of vicarious liability, having
defended solely on the proposition that Plaintiffs could not establish infringement through
Employee Carr’s testimony. Plaintiffs contend Defendant Carey admitted having a direct
financial interest in the activities, but the Court finds Plaintiffs’ evidentiary support wanting.
Construing the facts in the light most favorable to Defendants, as the nonmoving parties, the
evidence shows Defendant Carey received $4,000 in gross income from Defendant LLC and
admitted she had an indirect financial interest in the Saloon. The issue is whether this
undisputed financial interest – her receipt of income from Defendant LLC through the activities
at the Saloon – constitutes a direct financial interest sufficient to render her also liable as an
infringer.
Relying on cases from other jurisdictions, Plaintiffs argue that a corporate officer may be
jointly and severally liable with the corporation for copyright infringement. Defendants, being

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silent, have not argued otherwise. An examination of Plaintiffs’ cases show Defendant Carey’s
financial interest is sufficient to support liability. E.g., Sailor Music v. Mai Kai of Concord, Inc.,
640 F.Supp. 629, 633 (D.N.H. 1986) (president, director and sole shareholder (owner) of
corporation liable along with corporation where owner had right and ability to supervise and
received monthly salary from corporation); Broadcast Music, Inc. v. Peppermint Club, Inc., Nos.
C 83-694 & C 84-7535, 1985 WL 6141, at *5 (N.D.Ohio Dec. 16, 1985) (president and principal
shareholder of corporation also liable as he had control or right to control corporation and direct
financial interest in success or failure of corporation); Boz Scaggs Music v. KND Corp., 491
F.Supp. at 913-914 (vice-president and general manager of corporation also liable where he had
complete control over operations and direct stake in financial success of radio station, which
would confer economic benefit on corporation and, in turn, its key officer and employee).
Defendant Carey’s Affidavit states the Karaoke disc jockey was instructed to play only
music licensed by ASCAP, she does not know whether such instructions were followed, and has
no “independent memory” of what music was played at the Saloon. No argument was made or
legal authority was provided as to why this would insulate either Defendant from liability.
Instead, such facts further demonstrate Defendants’ control over what could or could not be
performed and failure to do so. “It is the innocent infringer who must suffer since he [or she],
unlike the copyright owner, either has the opportunity to guard against the infringement (by
diligent inquiry), or at least the ability to guard against the infringement (by an indemnity
agreement and/or by insurance).” Shapiro, Bernstein & Co. v. H. L. Green Co., supra at 308.
Accordingly, the Court finds Defendants are jointly and severally liable to Plaintiffs.

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C.

Injunctive Relief.

Pursuant to 17 U.S.C. § 502(a), a court may grant injunctive relief “on such terms as it
may deem reasonable to prevent or restrain infringement of a copyright.” An injunction is
warranted when there is a “substantial likelihood of further infringement of plaintiffs’
copyrights.” Sailor Music v. Mai Kai of Concord, Inc., supra at 634 (internal quotation marks
and citation omitted); see also Broadcast Music, Inc. v. McDade & Sons, Inc., 928 F.Supp.2d at
1136. Here, Defendants knew a license was required, as Defendant LLC previously obtained a
license when the Saloon was located at its earlier location. Plaintiffs also repeatedly advised
Defendants of the need for a license and offered to provide them the same, but they refused such
offers. Defendants’ effort to prevent violations of Plaintiffs’ copyrights – to give instructions,
and nothing more – has proven inadequate and ineffectual. Under such facts and circumstances
of this case, Plaintiffs have shown that an injunction should be entered.
D.

Statutory Damages.

An infringer of copyright is liable either for the copyright owner’s actual damages and
any additional profits of the infringer, or statutory damages. 17 U.S.C. § 504(a). Under Section
504(c)(1), the copyright owner may elect to be awarded 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 considers just.” Where the copyright owner proves the infringement was
committed willfully, the court, in its discretion, may increase the award of statutory damages to a
sum of not more than $150,000. Damages may be reduced to not less than $200, however, if the
infringer proves a lack of awareness and no reason to believe that his or her acts constituted a
copyright infringement. 17 U.S.C. § 504(c)(2).

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In determining the amount of damages to award, the trial court is vested with broad
discretion to assess what is just in a particular case, “considering the nature of the copyright, the
circumstances of the infringement and the like,” but such assessment must be neither more than
the maximum nor less than the minimum. F.W. Woolworth Co. v. Contemporary Arts, Inc., 344
U.S. 228, 231-232 (1952). The statutory damages provision is designed to not only compel
restitution but also discourage wrongful conduct, as an effective sanction for enforcement of the
copyright policy. Id. at 233. “[C]ourts must put defendants on notice that it costs less to obey
the copyright act than to violate it.” Girlsongs v. 609 Indus., Inc., 625 F.Supp.2d 1127, 1131
(D.Colo. 2008). Courts have awarded statutory damages that are between two and three times
the license fees that would have been charged and, sometimes, even more. Id. at 1131
(collecting cases; awarding $2,000.00 per infringement for a total of $10,000.00, less than three
times the license fees “saved” of $3,500.00); Major Bob Music v. South Shore Sports Bar &
Grill, Inc., No. 2:08-cv-689, 2010 WL 2653330, at *3-4 (D.Utah 2010) (collecting cases;
awarding $2,000.00 per infringement for a total of $12,000.00, less than three times the license
fees saved of approximately $4,100.00); Broadcast Music, Inc. v. McDade & Sons, Inc., 928
F.Supp.2d at 1134 (awarding roughly four times the licensing fees that would have been due); 6
William F. Patry, Patry on Copyright § 22:174 (2013) (collecting cases; “courts have approved a
multiple of three to five times the license fee [infringer] would have paid absent litigation”).
In this case, if Defendants had entered into an agreement back in June 2011, when BMI
first contacted them, the estimated license fees between July 2011 and June 2013 would have
been approximately $2,610.00. Plaintiffs seek statutory damages in the amount of $3,000.00 per
infringement, for a total of $21,000.00, which is approximately eight times the amount of license

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fees Defendants “saved.” Defendants have not disputed the appropriateness of this amount. As
previously found, Defendants knew a license was required but rejected BMI’s repeated requests
and offers to obtain a license. Defendants did, however, obtain a license for some music from
ASCAP and for its jukebox and gave instructions to the Karaoke disc jockey. 2 Under such facts
and circumstances, Plaintiffs’ requested reward is beyond that which is “just.” Instead, the Court
finds an award of $1,200.00 per infringement for a total of $8,400.00, which is within the
statutory range allowed under Section 504(c), is sufficient to serve a deterrent purpose. This
award would be roughly three times the amount of license fees which would have been due to
Plaintiffs.
E.

Attorney’s Fees and Costs.

Pursuant to 17 U.S.C. § 505, the Court may, in its discretion, allow the recovery of “full
costs” and award a reasonable attorney’s fee to the prevailing party as part of the costs. There is
no precise rule or formula for making this determination, but some nonexclusive factors to guide
the Court’s discretion include: frivolousness, motivation, objective unreasonableness legally or
factually, and the need to advance considerations of compensation and deterrence. Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 & 535 n.19 (1994); Meshwerks, Inc. v. Toyota Motor Sales
U.S.A., Inc., 528 F.3d 1258, 1270 n. 11 (10th Cir. 2008).
Plaintiffs request an award of $13,060.06, consisting of $12,604.00 in attorney’s fees and
$456.06 in costs. This request was supported by an affidavit, with substantiating documentation,
which sets forth the rates charged; the attorney rates’ consistency with rates reported in a survey
2

The Court recognizes at least one court has found that a vicarious infringer’s defense that he had a contract with
the performer requiring them to not play unauthorized songs would not absolve him from a finding of willful
violation where he was notified repeatedly of his responsibilities under the copyright laws. Swallow Turn Music v.
Wilson, 831 F.Supp. at 580. To the extent that is construed as precluding such fact as a consideration in determining
what statutory damages may be “just,’ this Court respectfully disagrees.
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performed by the American Intellectual Property Law Association (“AIPLA”); the work
performed; and the costs incurred. Defendants failed to respond to Plaintiffs’ request, neither
disputing the legal authorities cited nor the reasonableness of the fees and costs requested.
In this case, the Court has found Defendants infringed on Plaintiffs’ copyrights, rejected
repeated opportunities to obtain a license to perform the copyrighted materials, and required
Plaintiffs to engage in litigation. Defendants’ Response defended on the sole ground that
Employee Carr’s testimony was undesignated expert opinion. Defendants never contested the
accuracy of Employee Carr’s declaration or any other aspect of Plaintiffs’ motion for summary
judgment. Under such facts, the Court finds an award of attorney’s fees and costs is appropriate.
While the attorney rates (ranging from $325.00-$565.00 per hour) appear high for the Denver
market, and at the high end even under the AIPLA, they are nonetheless supported by the AIPLA
survey for intellectual property services. No support, however, has been provided for the
paralegal rate of $160.00-$175.00 per hour and an examination of the billing statements fails to
show any specialized work which would warrant such a rate. Instead, the services performed
appear no different from any other litigation, e.g., handling copies of documents for service of
process, and reviewing file activity and updating electronic files with such information.
Accordingly, the fees are denied as to such charges, totaling $968.00.
III. CONCLUSION
Based on the foregoing, the Court finds Plaintiffs have met their burden of establishing
Defendants’ copyright infringement as to the Seven Compositions and of their entitlement to
relief. It is therefore

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1. ORDERED that Plaintiffs’ Motion for Summary Judgment (ECF No. 24) is hereby
GRANTED;
2. FURTHER ORDERED that Defendants Carey-On Saloon, LLC d/b/a Carey-On
Saloon and LeShawn Renee Carey are hereby permanently enjoined from publicly
performing, or causing or permitting to be publicly performed, any musical
compositions in BMI’s repertoire, including, but not limited to, the Seven
Compositions at issue, in violation of Title 17 of the United States Code, i.e., without
a license from BMI, at the Carey-On Saloon or any other business owned, controlled,
operated, maintained or conducted, directly or indirectly, by either or both
Defendants;
3. FURTHER ORDERED that Plaintiffs are awarded against Defendants Carey-On
Saloon, LLC d/b/a Carey-On Saloon and LeShawn Renee Carey, jointly and
severally, statutory damages of Eight Thousand Four Hundred Dollars ($8,400.00),
which is an award of $1,200.00 for each of the Seven Compositions infringed at the
Carey-On Saloon;
4. FURTHER ORDERED that Plaintiffs are awarded against Defendants Carey-On
Saloon, LLC d/b/a Carey-On Saloon and LeShawn Renee Carey, jointly and
severally, reasonable attorney’s fees in the amount $11,636.00;
5. FURTHER ORDERED that Plaintiffs are awarded against Defendants Carey-On
Saloon, LLC d/b/a Carey-On Saloon and LeShawn Renee Carey, jointly and
severally, costs in the amount of $456.06;

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6. FURTHER ORDERED that Plaintiffs shall recover against Defendants Carey-On
Saloon, LLC d/b/a Carey-On Saloon and LeShawn Renee Carey post-judgment
interest under 28 U.S.C. § 1961 from the date of entry of judgment until the award is
satisfied; and
7. FURTHER ORDERED that the Clerk of the Court is directed to enter judgment in
accordance with this Order.
DATED this 7th day of February, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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