BROADCAST MUSIC INC et al v. NORTHSIDE RIVARLY'S LLC et al
Filing
10
ORDER granting 9 Motion for Default Judgment. The Court HEREBY ORDERS the Clerk of Court to enter default judgment in favor of PLAINTIFFS against Defendants. Ordered by Judge C. Ashley Royal on 7/2/2013 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BROADCAST MUSIC, INC.;
:
SONY/ATV SONGS LLC; THE
:
BERNARD EDWARDS COMPANY LLC; :
RONDOR MUSIC INTERNATIONAL, :
INC. d/b/a IRVING MUSIC; EMI
:
VIRGIN SONGS, INC.; THE END OF
:
MUSIC; MOEBETOBLAME MUSIC;
:
SONG OF UNIVERSAL, INC.;
:
ESCATAWPA SONGS; SONY/ATV
:
SONGS LLC d/b/a SONY/ATV TREE
:
PUBLISHING; NASHVILLE STAR
:
MUSIC, A DIVISION OF REVEILLE
:
MUSIC PUBLISHING LLP; CARNIVAL :
MUSIC COMPANY d/b/a TILTAWHIRL :
MUSIC;
:
:
Plaintiffs,
:
:
v.
:
:
NORTHSIDE RIVARLY’S LLC d/b/a
:
RIBALRY’S ON NORTHSIDE; and
:
NICHOLAS E. SMITH, individually;
:
:
Defendants.
:
____________________________________
CASE NO.
5:13‐CV‐36 (CAR)
ORDER ON MOTION FOR DEFAULT JUDGMENT
Currently before the Court is Plaintiffs’ Motion for Default Judgment [Doc. 9]
against Defendant Northside Rivarly’s, LLC d/b/a Rivalry’s On Northside (“Rivalry’s”)
seeking statutory damages for Rivalry’s unlicensed public performance of six of
Plaintiffs’ musical compositions, in violation of United States Copyright Act of 1976, 17
1
U.S.C. § 101. Having fully considered Plaintiffs’ Motion, the Complaint, the submitted
evidence, and the relevant case law, the Court GRANTS Plaintiffs’ Motion.
Accordingly, default judgment should be entered in favor of PLAINTIFFS and against
Rivarlry’s, and appropriate relief is due to be awarded as discussed below.1
FACTS
According to the facts alleged in the Complaint, Plaintiffs are copyright owners
of at least one of the songs in this case and have granted the right to license the public
performance rights to Broadcast Music, Inc. (“BMI”).2 On behalf of all of its members,
BMI licenses the right to perform publically all of the songs in the BMI Repertoire,
including the songs at issue in this case. At all relevant times, Plaintiffs owned the
copyrights for the six musical compositions involved in this case: “Good Times a/k/a
Rappers’ Delight”, “Joy to the World”, “Lithium”, “Other Side a/k/a Otherside”,
“Kryptonite”, and “Gun Powder and Lead”. Each Plaintiff in this action granted BMI a
license to authorize the non‐dramatic, public performance of their copyrighted musical
compositions.3
Defendant Rivalry’s is a limited liability company organized under the laws of
the State of Georgia, which operates and controls an establishment known as Rivalry’s
1
See Fed. R. Civ. P. 55(b).
Compl. ¶¶ 5-15 [Doc. 1].
3
Compl. ¶ 3 [Doc. 1].
2
2
On Northside (the “Establishment”).4 Defendant Nicholas E. Smith, a member of the
LLC, is responsible for the operation and management of the Establishment.5
According to the report of Howard Clay, the investigator employed by BMI, Clay
visited the Establishment on the night of August 9, 2012, and using a battery powered
digital recording device, recorded approximately four hours of music that was
publically performed either by a live DJ or by karaoke inside the Establishment. 6 Four
days later, Clay submitted the digital audio recording to BMI’s General Licensing
Department via overnight carrier.7 Two of BMI’s employees, Lisa Brammer and
Christopher Lott, separately examined the audio recording and positively identified the
six songs complained of in this case.8
At no time has Rivalry’s sought or obtained a licensing agreement from BMI.9
BMI sent sixteen letters via FEDEX or First Class mail to Rivalry’s warning of the
infringement and advising of licensing options.10 Because Rivalry’s failed to respond to
its letters, BMI dispatched investigator Clay to the Establishment. Moreover, BMI’s
licensing personnel telephoned Rivalry’s on twenty‐eight occasions attempting to warn
Rivalry’s of the infringement.11 Rivalry’s failed to respond to all of BMI’s
communications. Thus, on January 28, 2013, Plaintiffs filed this Complaint against
4
Id. at ¶ 16.
Id. at ¶ 19.
6
Exhibit A [Doc. 9-3].
7
Id.
8
Id.
9
Stevens Declaration ¶ 9 [Doc. 9-2]
10
Exhibit B [Doc. 9-4].
11
Stevens Declaration ¶ 8 [Doc. 9-2]
5
3
Rivalry’s and its member Nicholas E. Smith, alleging six counts of willful copyright
infringement in violation of 17 U.S.C. § 101. On February 19, 2013, Defendants were
served with the Summons and Complaint. As of the date of this Order, neither
Defendant has answered or otherwise acknowledged the pendency of this suit.
Plaintiffs received an entry of default on March 21, 2013, and on April 11, 2013,
Plaintiffs filed the present Motion for Default Judgment [Doc 9].
DISCUSSION
A.
Default Judgment Standard
Prior to obtaining a default judgment, the party seeking judgment must first
obtain an entry of default.12 Plaintiff has satisfied this requirement. After entry of
default, Plaintiff is required to seek default judgment from the Court.13
The mere entry of default by the Clerk does not in itself warrant the entry of
default judgment by the Court.14 Rather, the Court must find that there is a “sufficient
basis in the pleadings for the judgment to be entered.”15 The defendant is not held to
admit facts that are not well‐pleaded or to admit conclusions of law.16 The Clerk’s entry
of default causes all well‐pleaded allegations of facts to be deemed admitted.17 The
Court must accept these facts as true and determine whether they state a claim upon
12
See Fed. R. Civ. P. 55(a).
Fed. R. Civ. P. 55(b)(2) (“[T]he party entitled to a judgment by default shall apply to the court therefor.”).
14
See Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
15
Id.
16
Id.
17
See Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).
13
4
which relief may be granted.18 In considering any default judgment, the Court must
examine (1) jurisdiction, (2) liability, and (3) damages.19 This Court has jurisdiction
pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). The remaining
considerations, liability and damages, are discussed below.
B.
Liability under 17 U.S.C. § 101
In an action alleging copyright infringement under 17 U.S.C. § 101 for public
performance of musical compositions, a plaintiff must prove (1) that the plaintiff
originally authored or composed the work, (2) that the plaintiff complied with
copyright formalities under Title 17 of the United States Code, (3) that the plaintiff is the
proprietor of the compositions in the action, (4) that the defendant publicly performed
the composition, and (5) that the defendant did not have a license from or permission
by the plaintiff or his representative to perform the composition.20 Proof of copyright
registration is sufficient to prove the first three elements.21 The fourth element, public
performance, may be proved by the affidavit of an investigator.22
Here, the facts alleged in Plaintiffs’ Complaint establish Defendants’ liability
under 17 U.S.C. § 101. Plaintiffs submitted proof of copyright registration, thereby
establishing the first three elements. Investigator Clay’s affidavit and report that he
18
See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370, n.41 (11th Cir. 1987) (citing Nishimatsu, 515 F.2d
at 1206).
19
See Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353 (S.D. Ga. 2004).
20
E Beats Music v. Andrews, 433 F. Supp. 2d 1322, 1325 (M.D. Ga. 2006) (citations omitted).
21
See id.
22
Id.
5
recorded the public performance of the music compositions inside the Establishment
satisfies the fourth element. Finally, the facts in the Complaint establish that
Defendants failed to procure a license or permission from Plaintiffs to perform the
compositions. Thus, the Complaint and the evidence presented to the Court establish
that Defendants infringed on Plaintiffs’ copyrighted works by publicly performing six
musical compositions without a license, in violation of 17 U.S.C. § 101. Therefore,
Plaintiffs are entitled to default judgment.
C.
Damages
Having concluded that Plaintiffs are entitled to default judgment, the Court must
determine the appropriate relief.
I. Injunctive Relief
First, Plaintiffs seek a permanent injunction against Defendants from any further
copyright infringement. Under 17 U.S.C. § 502(a), a court may grant a temporary or
permanent injunction it deems reasonable under the circumstances. Past infringement
and substantial likelihood of future infringement normally entitle the holder of a
copyright to a permanent injunction against the infringer.23
The Court finds a permanent injunction to be appropriate in this case. Plaintiffs
have established both Defendants’ past infringement and the likelihood of future
23
Pacific and Southern Company, Inc. v. Duncan, 744 F.2d 1490, 1499 (11th Cir. 1984).
6
infringement through Defendants’ clear pattern of disregard for BMI’s licensing
scheme. Defendants not only failed to seek or obtain a licensing agreement, but also
continued to publicly perform or consent to the performance of copyrighted
compositions despite receiving sixteen letters and twenty‐eight phone calls from BMI
warning Defendants of their infringement. Because of Defendants’ persistence in
violating the United States Copyright laws even after being warned of the possibility of
liability, this Court finds Defendants are likely to continue to infringe on Plaintiffs’
copyrights. Therefore, Defendants are permanently enjoined and restrained from
publicly performing any and all musical compositions in the BMI repertory and from
allowing or causing such compositions to be performed publicly at any establishment
Defendants control or operate.
II. Statutory Damages
Second, Plaintiffs seek statutory damages pursuant to 17 U.S.C. § 504(c)(1).
Under this section, plaintiffs may elect to recover statutory damages rather than actual
damages and profits. “With respect to any one work, for which any one infringer is
liable individually,” such damages are limited to not less than $750 and not more than
$30,000, “as the court considers just.”24 Furthermore, if the infringement was made
24
17 U.S.C. § 504(c)(1).
7
willfully, the court may increase the statutory damages to not more than $150,000.25
In determining the amount of statutory damages to be awarded, a court may
consider (1) what the defendant saved and reaped from the infringement; (2) what
revenue the plaintiff lost as a result of the defendant’s infringement; and (3) whether the
defendant made the infringement willfully, knowingly, or merely innocently.26 A court
may also consider whether the award of statutory damages will serve as a deterrent to
future wrongful conduct. As the Supreme Court stated in F.W. Woolworth Co. v.
Contemporary Arts, Inc.,
[A] rule of liability which merely takes away the profits from an
infringement would offer little discouragement to 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 statutory limits to sanction and
vindicate the statutory policy.27
Thus, in order to deter future infringements, a court can impose sanctions higher
than both the statutory minimum and what the defendant would have paid in a fairly
negotiated contract. If a defendant were required to pay the same amount in damages
25
17 U.S.C. § 504(c)(2).
Morganactive Songs Inc. v. Padgett, Case No. 5:04-CV-145 (CAR), 2006 WL 2882521, * 3 (M.D. Ga. August 3,
2006) (citation omitted).
27
344 U.S. 228 (1952).
26
8
that he would have paid for a negotiated bargain, there would be no reason to obey
copyright law.28 In order to achieve this deterrent effect, courts in the Eleventh Circuit
have awarded damages that are higher than both the statutory minimum and what the
defendant would have paid for a license.29
Here, Defendants authorized the public performance of six musical compositions
copyrighted by Plaintiffs without a license, presumably profiting from the
performances. If Defendants had properly obtained a license when first contacted by
BMI, they would have incurred licensing fees of $7,280.00. However, Defendants
continued to infringe upon Plaintiffs’ rights with full knowledge of the infringement.
Thus, in keeping with the prior precedent of this Circuit, the Court finds Plaintiffs are
entitled to $2,500.00 per infringement, for a total of $15,000.00. This amount is more
than double the amount of the license fees Defendants would have incurred during the
relevant time period, which is appropriate in light of both Defendants’ willful and
intentional infringements and the need to deter future conduct.
III. Attorneys’ Fees and Costs
Finally, Plaintiffs seek an award of reasonable attorneys’ fees and other litigation
costs in accordance with 17 U.S.C. § 505. In any civil action under Title 17 of the United
States Code, the court may, in its discretion, award reasonable costs, including
28
See Montgomery v. Noga, 168 F.3d 1282, 1296 (11th Cir. 1999).
See Morganactive Songs, 2006 WL 2882521 at * 3 (awarding $2,000 for each infringement, totaling $14,000, or
more than twice the cost of the license); Nick-O-Val Music Co v. P.O.S Radio Inc., 656 F. Supp. 826, 829 (M.D. Fla.
1987) (awarding $2,500 for each of the twenty infringements or more than twice the cost of the license).
29
9
attorneys’ fees, to the prevailing party.30 As part of the costs, attorneys’ fees are
awarded as a rule, rather than as an exception, and should be awarded routinely.31
In determining the appropriate amount of attorneys’ fees, the Court must
calculate the “lodestar,” which is the number of hours reasonably spent working on the
case multiplied by a reasonable hourly rate.32 The Court may make any adjustments to
the lodestar calculation for other considerations not yet factored into the lodestar
amount.33 The Court notes that “the starting point in any determination for an objective
estimate of the value of a lawyer’s services is to multiply hours reasonably expended by
a reasonable hourly rate.”34 “A reasonable hourly rate is the prevailing market rate in
the relevant legal community for similar services by lawyers of reasonably comparable
skills, experience, and reputation.”35 The Court further notes that, in determining a
reasonable hourly rate, the Court “is itself an expert on the question and may consider
its own knowledge and experience concerning reasonable and proper fees and may
form an independent judgment either with or without the aid of witnesses as to
value.”36
Plaintiffs seek $5,513.57 in attorney’s fees and costs. Plaintiffs submitted a
30
17 U.S.C. § 505; Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994).
E Beats Music, 433 F. Supp. 2d at 1327 (citations and quotations omitted).
32
Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000).
33
Id.
34
Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).
35
Id.
36
Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing Norman, 836 F.2d at 1299).
31
10
Declaration [Doc. 9‐7] and invoices [Doc. 9‐8] from their attorney, Ryan Pumpian,
seeking fees for the following legal services: Joellen Bringardner, 2.8 paralegal hours at
a rate of $235 per hour; Ryan Pumpian, 1.7 attorney hours at a partner rate of $485 per
hour, and; James Gibson, 3.8 attorney hours at an associate rate of $370 per hour. In
sum, Plaintiffs seek $5,513.57 for 8.3 total hours of legal services and an additional
$30.47 in fees and expenses.37 The Court finds 8.3 hours of legal services spent on this
case to be reasonable; however, the hourly rates are not.
A reasonable hourly rate “is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills, experience,
and reputation.”38 In general the relevant legal community is the place where the case is
filed.39 Plaintiff filed this case in Macon, Georgia, and the events giving rise to this
litigation occurred in Macon. Thus, the Court finds that Macon is the appropriate legal
community for the purpose of determining reasonably hourly rates.
The Court may use its discretion and expertise to determine the appropriate
hourly rate. Plaintiffs have proposed rates of $485 per hour for Ryan Pumpian’s
(partner) time, $370.00 per hour for James Gibson’s (associate) time, and $235 per hour
37
Plaintiff’s invoice #10186464 itemizes 3.2 total hours of legal services billed and $3.50 in expenses. The total
charges on this invoice inexplicably amount to $3,206.03. No itemization exists to explain the disparity between the
accurate total for 3.2 billable hours and $3.50 in expenses, and the amount actually documented as total charges on
the invoice. Thus, the Court did not consider the ambiguous total on this invoice, and considered only the hours of
legal services and expenses in calculating the award.
38
Norman, 836 F.2d at 1299.
39
See Cullens v. Ga. Dep’t of Transp., 29 F.d 1489, 1494 (11th Cir. 1994).
11
for Joellen Bringardner’s (paralegal) time. However, based on careful consideration of
Plaintiff’s Motion and the Court’s own expertise, judgment, and research into
prevailing market rates for attorneys in the Macon area, the Court finds that attorney
Ryan Pumpian is entitled to $225.00 per hour; James Gibson is entitled to $150.00 per
hour; and Joellen Bringardner is entitled to $75.00 per hour. The Court finds no other
rate adjustments necessary.
For the foregoing reasons, the Court finds that Plaintiffs are entitled to an award
of $1,192.97 in attorneys’ fees and costs for 8.3 hours of legal services as calculated in the
Appendix to this Order.40
CONCLUSION
For the foregoing reasons, the Court HEREBY ORDERS the Clerk of Court to
enter default judgment in favor of PLAINTIFFS against Defendants. The judgment
shall provide that Defendants are PERMANENTLY ENJOINED AND RESTRAINED
from performing any and all copyrighted musical compositions in the BMI Repertoire
and from causing such compositions to be performed at any establishment owned,
operated, or controlled by Defendants. In addition, the Court AWARDS Plaintiffs
$15,000.00 in statutory damages and $1,192.97 in attorneys’ fees and expenses.
40
See Coastal Fuels Mktg., Inc. v. Fla. Express Shipping Co., 207 F.3d 1247, 1252 (11th Cir. 2000) (stating that
court granting award of attorneys’ fees should provide a summary table of how it arrived at calculation awarded).
12
SO ORDERED this 2nd day of July, 2013
SSH/DMW
S/ C. Ashley Royal
C. ASHLEY ROYAL
United States District Judge
APPENDIX
Calculation of Attorney Fees
Ryan Pumpian
Reasonable Hours
1.7
Reasonable Rate
$225.00
Total Attorney Fees
$382.50
James Gibson
Reasonable Hours
3.8
Reasonable Rate
$150.00
Total Attorney Fees
$570.00
Joellen Bringardner
Reasonable Hours
2.8
Reasonable Rate
$75.00
Total Paralegal Fees
$210.00
13
Additional Expenses & Fees
$30.47
Total Fees Awarded:
$1,192.97
14
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