Broadcasrt Music, Inc. et al v. ACS of Cape Coral, Inc. et al

Filing 14

ORDER granting 13 Motion for Default Judgment as stated in the Order. The Clerk shall enter judgment accordingly, terminate all deadlines as moot, and close the case. Signed by Judge John E. Steele on 6/11/2012. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BROADCAST
MUSIC,
INC.,
MISTER
SUNSHINE
MUSIC,
INC.,
LLEE
CORPORATION, WELSH WITCH MUSIC,
CONCORD MUSIC GROUP, INC., doing
business as Jondora Music, COMBINE
MUSIC CORP, SONY/ATV SONGS, LLC,
LINDSEYANNE MUSIC CO., INC, THE
MUSIC FORCE, EMI VIRGIN STORES, INC.
doing business as EMI Longitude
Music, EMI BLACKWOOD MUSIC, INC.,
EMI VIRGIN SONGS, INC., THE END OF
MUSIC, LLC, doing business as The
End of Music, SONY/ATV SONGS, LLC,
doing business as Sony/ATV Tree
Publishing, BIG YELLOW DOG, LLC,
doing business as Big Yellow Dog
Music, TOKECO TUNES, SONY/ATV SONGS,
LLC, doing business as Sony/ATV
Melody, JACKABOY SONGS,
Plaintiffs,
vs.

Case No.

2:11-cv-516-FtM-29DNF

ACS OF CAPE CORAL, INC.,
doing
business as Anthony's on the Blvd.,
ANTHONY SERRAGO, individually,
Defendants.
___________________________________
ORDER
This matter comes before the Court on plaintiffs’ Motion for
Final Default Judgment (Doc. #13) filed on April 30, 2012.

No

responses have been filed and the time to respond has expired.

The

Court finds that an evidentiary hearing is not required in this
case and will render a decision based on the documents submitted.

I.
On September 13, 2011, plaintiffs filed a Complaint (Doc. #1)
against ACS of Cape Coral, Inc. d/b/a Anthony’s On The Blvd (ACS)
and Anthony Serrago (Serrago) (collectively defendants) alleging 12
incidents

of

willful

copyright

infringement

Copyright Act of 1976 (17 U.S.C. § 101, et seq.).

pursuant

to

the

After service of

process and finding no response to the Complaint, plaintiffs sought
a Clerk’s default against defendants.

(Docs. #10, #11.)

On March

6, 2012, a Clerk’s Entry of Default (Doc. #12) was entered.
Therefore, all prerequisites for a default judgment have been met.
See Fed. R. Civ. P. 55(a).
“A

defendant,

by

his

default,

admits

the

plaintiff’s

well-pleaded allegations of fact, is concluded on those facts by
the judgment, and is barred from contesting on appeal the facts
thus established. [ ]
merits,

but

only

so

A default judgment is unassailable on the
far

as

it

is

supported

by

well-pleaded

allegations. [ ] A default defendant may, on appeal, challenge the
sufficiency of the complaint, even if he may not challenge the
sufficiency of the proof.”

Eagle Hosp. Physicians, LLC v. SRG

Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009)(internal
quotations and citations omitted).

Assuming all allegations are

admitted, plaintiff Broadcast Music, Inc. (BMI or plaintiff) was
granted the right to license the public performance of 6.5 million
copyrighted musical compositions.

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The other plaintiffs are the

owners of the copyrights.

Defendant ACS publicly performs musical

compositions at the establishment known as Anthony’s on the Blvd.
ACS has a direct financial interest in the establishment.

Serrago

has the right and ability to supervise the activities of ACS and
also has a direct financial interest in ACS and the establishment.
Plaintiffs allege that defendants willfully publicly performed the
musical compositions in BMI’s repertoire without authorization. In
the Complaint, plaintiffs seek an injunction restraining further
performances, statutory damages, costs, and attorney’s fees.
The Court finds that the allegations are sufficient and well
pled for purposes of establishing a claim of copyright infringement
of musical compositions.
II.
Under Title 17, United States Code, Section 504, an infringer
is liable for a copyright owner’s actual damages or statutory
damages.

Plaintiff has elected to seek statutory damages, which

allows for recover of not less than $750 or more than $30,000, as
considered just.

17 U.S.C. § 504(c)(1).

If wilfulness is found,

the Court has the discretion to increase the award to a sum not
more than $150,000.00.
plaintiffs

seek

17 U.S.C. § 504(c)(2).

$3,000.00

for

each

of

the

In this case,
twelve

acts

of

infringement described in the Complaint for a total of $36,000.00.
In support, plaintiffs have filed the Declaration of Kerri
Howland-Kruse (Doc. #13-1), Assistant Vice President (Legal) for

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BMI, stating that the musical compositions licensed by BMI are
registered with the Copyright Office, that BMI has the right to
publicly perform the compositions and to issue public performance
license agreements, and that BMI has been granted the right to
maintain actions and seek damages for infringement.

Also provided

is the Declaration of Paul Knipler (Doc. #13-2), Senior Director
(Business Affairs) of BMI, stating that prior to May 2010, BMI
learned that the establishment was offering musical entertainment
without a license and without permission.

Mr. Knipler further

states that on May 24, 2010, BMI sent a letter to the establishment
advising

of

the

need

for

a

license

and

agreement, but no response was received.

enclosing

a

license

Mr. Knipler states that

neither BMI nor the owners of the copyrights have issued a license
to any person authorizing performances at the establishment.

Mr.

Knipler states that additional letters were sent and refused and
others were sent with no response.

On April 28, 2011, and again on

May 11, 2011, BMI sent defendants a letter instructing them to
cease the public performances.

Mr. Knipler states that a BMI

employee also called 62 times regarding licensing.
personnel

went

performances.

to

the

premises

On

June

6,

2011,

and
BMI

recorded
sent

a

the

Eventually,
infringing

letter

to

the

establishment with notice of the investigation with no response.
Upon

information

and

belief,

defendants

are

still

publicly

performing music without an executed licensing agreement.

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The

estimated fees lost for June 2010 through May 31, 2012, are
$4,665.60.
Upon

review

defendants’

of

the

evidence

default,

the

Court

presented

finds

a

and

willful

in

light

of

violation

by

defendants of plaintiffs’ copyrighted compositions. The Court will
award the requested $36,000.00 for statutory damages.
III.
Under Title 17, United States Code, Section 502, the Court may
grant injunctions “as it may deem reasonable to prevent or restrain
infringement of a copyright.” 17 U.S.C. § 502(a). Plaintiffs seek
a permanent injunction against defendants enjoining and restraining
defendants from infringing the copyrighted musical compositions
licensed by BMI.

The request will be granted.
IV.

Under Title 17, United States Code, Section 505, the Court may
allow the recovery of costs, including reasonable attorney’s fees
as part of the cost, to the prevailing party.

Plaintiffs have

provided the Declaration of Zachary D. Messa (Doc. #13-6) of
Johnson, Pope, Bokor, Ruppel and Burns, LLP, an intellectual
property lawyer who provided legal services to plaintiffs at the
rate of $250.00 per hour.1

Mr. Messa expended 5.9 hours of time on

1

Mr. Messa indicates that the hourly rate is the customary and
reasonable rate in the Tampa Bay area. The Tampa Bay are is not
the prevailing relevant market, however the Court finds that the
rate is also reasonable in Fort Myers, Florida.
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the case, plus an additional 1.1 hours on the instant motion for a
total of $1,750.00 in attorney’s fees.

Plaintiffs also incurred

the cost of the filing fee in the amount of $350.00.
The Court finds that the rate and the hours expended on this
matter are reasonable. Therefore, fees will be granted. The costs
are otherwise taxable and therefore will also be granted.
Accordingly, it is now
ORDERED:
1.

Plaintiffs’ Motion for Final Default Judgment (Doc. #13)

is GRANTED as follows:
A.

Defendants are hereby jointly and individually enjoined

and restrained permanently, either alone or in concert with others,
from publicly performing any and all of the copyrighted musical
compositions in the BMI repertoire, including those owned by
Plaintiffs, and from causing or permitting such compositions to be
publicly performed at the establishment known as Anthony’s On The
Blvd, located in Cape Coral, Florida, or at any other facility
owned, operated, or conducted by the Defendants, in whole or in
part, and from aiding and abetting public performances of such
compositions, unless Defendants shall have previously obtained
permission to give such performances either directly from the
Plaintiffs or the copyright owners whose compositions are being
performed or by license from BMI pursuant to 17 U.S.C. § 502;

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B.

Plaintiffs are awarded statutory damages in the amount of

$36,000.00 pursuant to 17 U.S.C. § 504(c); and
C.

Plaintiffs are awarded $3,069.08 for attorney’s fees and

$350.00 in costs incurred as prevailing parties pursuant to 17
U.S.C. § 505.
2.

The Clerk shall enter judgment accordingly, terminate all

deadlines as moot, and close the case.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2012.

Copies:
Counsel of record

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11th

day of