Broadcast Music, Inc et al v. MWS, LLC et al

Filing 38

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that BMI's Motion to Strike Exhibits to Defendants' Motion for Summary Judgment (ECF No. 32 ) is GRANTED. IT IS FURTHER ORDERED that BMI's Motion for Summary Judgment (Docket No. 27 ) is GRANTED in favor of BMI and against Defendants on the issue of liability. The parties shall submit supplemental briefing on the issue of statutory damages and attorney's fees and costs as deemed appropriate. IT IS FURTHER ORDERED that BMI&# 039;s request for injunctive relief will be granted. Defendants are enjoined from publicly performing any of the musical works in BMI's repertoire unless Defendants execute a licensing agreement. IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (ECF No. 29 ) is DENIED. A separate Judgment in accordance with this Memorandum and Order is entered this samedate.. Signed by Magistrate Judge Terry I. Adelman on 8/8/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BROADCAST MUSIC, INC., et al.,
Plaintiffs,
v.
MWS, LLC d/b/a FIFTEEN, et al.,
Defendants.

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Case No. 4:11CV1481 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Summary Judgment (ECF No. 27),
Defendants’ Motion for Summary Judgment (ECF No. 29), and Plaintiffs’ Motion to Strike Exhibits
to Defendants’ Motion for Summary Judgment (ECF No. 32). All matters are pending before the
undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C.
§ 636(c).
This an action for copyright infringement brought by Plaintiffs Broadcast Music, Inc. and
individual copyright owners (collectively referred to as “BMI”) pursuant to 17 U.S.C. § 101 et. seq.
(the “Copyright Act”), against Defendants MWS, LLC (“MWS”) and Mark D. Winfield (“Winfield”).
(Compl. at ¶¶ 1, 3-11). BMI is a performing rights society which licenses the right to publicly
perform copyrighted musical composition works on behalf of the copyright owners of these works,
including music publishing companies and independent composers. BMI has been granted the right
to license the public performance rights in 6.5 million copyrighted musical compositions, including
those compositions which are alleged in the instant action to have been infringed. (Id. at ¶ 3). The
other named Plaintiffs are the copyright owners of the musical compositions which are the subject
of this action. (Id. at ¶ 4). MWS is a limited liability company organized under the laws of Missouri,

which operates, maintains and controls an establishment known as Fifteen (“Fifteen”) in St. Louis,
Missouri. (Id. at ¶ 12). MWS regularly features performances of live and recorded music. (Id. at
¶ 13). Winfield is a member of MWS with primary responsibility for the operation and management
of MWS and Fifteen. (Id. at ¶ 15).
BMI alleges five claims of willful copyright infringement based on Defendants’ unauthorized
public performance of musical compositions from the BMI repertoire at Fifteen on December 10,
2010 and March 18, 2011. (Compl. at ¶19, Exh. A). BMI asserts that the specific acts of copyright
infringement alleged in the Complaint have caused BMI damage and seeks an order of permanent
injunction, statutory damages of $7,000.00 for each of the five acts of copyright infringement alleged
in the complaint, costs, attorneys fees in the amount of $16,062.61, and interest on these awards.
Both Plaintiffs and Defendants have filed motions for summary judgment claiming that there
are no genuine issues of material fact and that they are entitled to judgment as a matter of law.
Defendants have responded to Plaintiffs’ motion to which Plaintiffs have replied. Plaintiffs have
responded to Defendants’ motion.
At the outset, the undersigned addresses Plaintiffs' Motion to Strike Exhibits to Defendants'
Motion for Summary Judgment (ECF No. 29). Defendants have not filed an opposition or responsive
pleading thereto. Plaintiffs request to strike the exhibits attached to Defendants' Motion for Summary
Judgment, Doc. 29-1-29-6 and an Exhibit B,1 allegedly an inaudible recording to be filed separately,
on the basis they are not authenticated and admissible for purposes of the instant motion for summary
judgment. See Rule 56(e) of the Federal Rules of Civil Procedure. Plaintiffs asserts that under Rule
56(e), documents submitted in connection with a motion for summary judgment must be
A review of the court record shows that Defendants never filed Exhibit B with the Court.

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authenticated by an affiant through whom the party could offer testimony at trial sufficient to establish
its authenticity for admission into evidence. Rule 56(c)(4) states "[a]n affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the matters
stated." Fed.R.Civ.P. 56(c)(4). Plaintiffs contend that Defendants have failed to authenticate the
documents and the exhibit by affidavit or otherwise. The undersigned agrees with Plaintiffs that
Defendants have failed to make an adequate showing of authenticity or admissibility with respect to
these exhibits.
"To be considered on summary judgment, documents must be authenticated by and attached
to an affidavit made on personal knowledge setting forth such facts as would be admissible in
evidence or a deposition that meets the requirements of Fed.R.Civ.P. 56(e). Documents which do
not meet those requirements cannot be considered." Stuart v. Gen. Motors Corp., 217 F.3d 621,
635-36 n. 20 (8th Cir. 2000). In light of the lack of affidavits supporting the submissions, the
undersigned will strike the unauthenticated and inadmissible exhibits and will not consider the exhibits
in ruling on the motions for summary judgment.
The Court begins by noting that Defendants’ Motion for Summary Judgment fails to state a
single uncontroverted material fact or raise any legal or factual argument that would entitle
Defendants to summary judgment. This pleading includes legal arguments and conclusory statements
rather than the issues of fact that the Local Rules require. Material facts are those “that might affect
the outcome of the suit under the governing law,” and a genuine material fact is one “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Defendants have failed to follow Local Rule 7-4.01(E), which requires
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that the moving party file “a statement of uncontroverted material facts, set forth in a separately
numbered paragraph for each fact, indicating whether each fact is established by the record, and if so,
the appropriate citations” with its motion of summary judgment. Local Rule 7-4.01(E) requires the
moving party to submit a statement of uncontroverted material facts. These facts should be set forth
in separately numbered paragraphs for each fact, “indicating whether each fact is established by the
record, and if so, the appropriate citations to the record.” Defendants have not provided the Court
with a statement of uncontroverted material facts with adequate citations to the record. Further,
Defendants have failed to substantiate, in accordance with Rule 56, the facts they identify as entitling
them to judgment. The Court finds that the Motion for Summary Judgment submitted by Defendants
does not satisfy Local Rule 7-4.01(E), and the Court will not consider Defendants’ arguments in
support. See Jackson v. United States, Cause No. 1-07cv34ERW (July 29, 2008); LOL Finance Co.
v. Paul Johnson & Sons Cattle Co., Inc, 758 F.Supp. 871, 877 (D.Neb. 2010) (dismissing motion for
summary judgment where movant failed to comply with local rule providing that party moving for
summary judgment include in brief a separate statement of material facts).
When deciding cross-motions for summary judgment, the approach is only slightly modified,
as explained in International Brotherhood of Electrical Workers, Local 176 v. Balmoral Racing Club,
Inc., 293 F.3d 402, 404 (7th Cir. 2002): “The usual Rule 56 standard applies to cross-motions for
summary judgment. ... [S]ummary judgment is proper if the record demonstrates that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law under the familiar standards of Fed. R. Civ. P. 56(c).” This Court must grant summary judgment
if, based upon the pleadings, admissions, depositions and affidavits, there exists not genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment,
the court is required to view the facts in the light most favorable to the non-moving party and must
give that party the benefit of all reasonable inferences to be drawn from the underlying facts.
AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden
of showing both the absence of a genuine issue of material fact and his entitlement to judgment as a
matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita, 475 U.S. at 58687; Fed. R. Civ. P. 56(c). Once the moving party has met his burden, the non-moving party may not
rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence,
showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e). Rule 56(c) “mandates the
entry of summary judgment ... against a party who fails to make a showing sufficient to establish the
existence of an element essential to the party’s case, and on which the party will bear the burden of
proof at trial.” Celotex, 477 U.S. at 322. Where the unresolved issues are primarily legal rather than
factual, summary judgment is particularly appropriate. See Crain v. Board of Police Comm’rs, 920
F.2d 1402, 1405-06 (8th Cir. 1990). When reviewing the record in connection with a pending motion
for summary judgment, the court may not weigh the evidence, determine credibility, or decide the
truth of any factual matter in dispute. However, “there is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477
U.S. at 249.

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The Undisputed Evidence before the Court
Viewing all facts and drawing all reasonable inferences in the light most favorable of the
nonmoving party, A. Brod, Inc. v. SK & I Co., L.L.C., 998 F. Supp. 314, 320 (S.D.N.Y. 1998) the
Court sets forth the following facts:
The Complaint in this action alleges five claims of copyright infringement of certain musical
compositions licensed by BMI, the copyrights of which are owned by the other Plaintiffs, arising out
of unauthorized public performances of those musical works. Copies of the certificates and
subsequent documentation relating to the chain of ownership of these musical compositions are
attached to Howland-Kruse’s Declaration. (Decl. Howland -Kruse at ¶ 4, Exhs. A and B; Compl.,
Exh. A/Schedule)
Through agreements with copyright owners, BMI acquires non-exclusive public performance
rights from each, and acquired such a right from each of the other Plaintiffs in this action. (Decl.
Howland-Kruse at ¶ 2; Decl. Coletta, Exh. B). BMI grants to music uses such as owners and
operators of restaurants and nightclubs, the right to publicly perform any of the musical works in
BMI’s repertoire by means of blanket license agreements. (Id. at ¶¶ 2-3).
Defendants MWS, LLC and Mark D. Winfield each individually own and operate Fifteen
located at 1900 Locust Avenue, St. Louis, Missouri 63103-1641. (Walter Decl. at ¶¶ 20-21, Exh.
B at ¶ 1). Defendants regularly offer performances of live and recorded music at Fifteen. (Walter
Decl., Exh. B at ¶¶ 95, 97-98; Exh. C).
Between July 2009 and April 2011, BMI repeatedly apprised Defendants of the need to obtain
permission for public performance of copyrighted music, evidenced by some twenty-three letters and
sixty-six phone calls. (Decl. Stevens at ¶¶ 3, 5, 7, 8). BMI also sent nine letters instructing
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Defendants to cease the public performance of BMI-licensed music. (Id. at ¶ 6). On two occasions,
BMI representatives visited Fifteen. (Id. at ¶ 9). BMI never issued a license to any person
authorizing the performance at Fifteen of any of the works alleged to have been infringed. (Id. at ¶
4). BMI offered to grant a license for public performance of BMI-licensed musical compositions at
Fifteen, but Defendants did not enter into a license agreement and continued to offer unauthorized
public performance of BMI-licensed music. (Id. at ¶ 10; Howland-Kruse Decl. at ¶ 2). On July 16,
2010, BMI sent Defendants a letter instructing them to cease the public performance of BMI-licensed
music. (Stevens Decl. at ¶ 6).
Fifteen continued public performances of BMI-licensed music, and public performances of
songs in the BMI repertoire were documented by Emily Hughes and Dale Farris on December 10,
2010 and March 18, 2011. (Id. at ¶ 11). In the Certified Infringement Reports. Hughes and Farris
identified three of the five compositions played at Fifteen on December 20, 2010 and March 18, 2011,
which includes the songs that are the subject of this infringement action. (Id., Exh. A). The audio
recording of the December 10, 2010 visit submitted for digital review through patented digital audio
technology by Landmark Digital Services confirmed the performance of Baby Got Back. (Id. at ¶
13, Exh. A). The audio recording of March 18, 2011 visit submitted for digital review confirmed the
performance of Let It Rock and further identified the performance of Jessie’s Girl and You Really
Got Me, the other two of the five compositions which are alleged in the Complaint to have been
performed by Fifteen. (Id.). On April 7 and 11, 2011, BMI sent Fifteen letters advising of the
investigation. (Id. at ¶ 14, Exh. B). Defendants were not licensed by the Plaintiffs to publicly
perform any of their musical compositions at Fifteen. (Id. at ¶¶ 4, 17; Decl. Howland-Kruse at ¶¶ 47).
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On December 10, 2010 and March 18, 2011, Defendants operated and maintained Fifteen and
had the right and ability to direct and control the activities of Fifteen. (Walter Decl., Exh. B at ¶¶ 1-2,
4-5). On December 10, 2010 and March 18, 2011, Defendant Mark D. Winfield had the right and
ability to supervise the persons working at Fifteen and had a direct financial interest in Fifteen. (Id.,
at ¶¶ 6-7). On December 20, 2010 and March 18, 2011, Fifteen was open to the public. (Id. at ¶ 8).
Discussion
I. Copyright Infringement
The Copyright Act provides the owner of a copyright with the exclusive right to perform, or
to authorize others to perform, the copyrighted work. 17 U.S.C. § 106(4). To establish a prima facie
case for infringement of copyright in musical compositions, a plaintiff must prove the following five
elements:
(1) the originality and authorship of the compositions involved:
(2) compliance with all formalities required to secure a copyright under Title 17
United States Code;
(3) that plaintiffs are the proprietors of the copyrights of the compositions
involved in the action;
(4) that the compositions were performed publicly for profit [by the defendants]; and
(5) that the defendants had not yet received permission form any of the plaintiffs or
their representatives for such performances.
Lorimar Music A. Corp. v. Black Iron Grill Co., 2010 WL 3022962, * 2-3 (W.D.Mo. July 29, 2012)
(citing Collins Court Music, Inc. v. Pulley, 704 F.Supp. 963, 964 (W.D.Mo. 1988)).

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“A prima facie case as to the first three elements may be made by submitting certified copies
of copyright registration certificates and any subsequent assignments.” Id. In support of their Motion
for Summary Judgment, BMI has submitted copies of each copyright registration certificate for each
composition at issue, as well as any subsequent documentation relating to the chain of ownership of
the songs and any subsequent assignments and other documents which indicate copyright ownership.2
(Pltfs’ Memo. in Support, Decl. Howland -Kruse at ¶ 4, Exhs. A and B; Compl., Exh. A/Schedule).
With this evidence, Plaintiffs have proven the first three elements of the five-element test to establish
infringement of copyright in musical compositions. Id. (citing Cross Keys Pub. Co., Inc. v. LL Bar
T Land & Cattle Co., Inc., 887 F.Supp. 219, 222 (E.D.Mo. 1995) (certified copies of copyright
registration certificates for each of the songs at issue established validity of plaintiffs’ copyrights).
Plaintiffs established the fourth element, public performance, with the Certified Infringement
Reports of Dale Farris and Emily Hughes documenting the music being publicly performed at Fifteen
and the audio recordings made by them. (Stevens Decl. at ¶¶ 11,12, exhibits attached). Defendants
have not rebutted this evidence, other than to challenge the estimated occupancy of Fifteen and to
take issue with the musical compositions not being in keeping with the musical genre(s) appealing
to their customers because of their age and musical preference. (Winfield Aff. at ¶¶ 9, 14,19, 20).
“Where no contrary evidence is offered or other evidence exists to create a reasonable doubt, an
investigator’s unrebutted affidavit is prima facie evidence of public performance.” Lorimar Music,

Defendants’ Best Evidence Argument is without merit. Federal Rule of Evidence 1003
provides that “[a] duplicate is admissible to the same extent as the original unless a genuine
question is raised about the original’s authenticity or the circumstances make it unfair to admit the
duplicate.” Fed.R.Evid. 1003. Defendants have not raised any genuine question regarding the
authenticity of the originals and so the Court rejects their argument and finds the copies attached
to the Howland-Kruse declaration are properly admissible.
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2010 WL 3022962, *3 (citing Cross Keys, 887 F.Supp. at 222). Because Defendants have not
offered any contrary evidence, the Certified Infringement Reports satisfactorily prove Defendants
publicly performed the songs at issue. 28 U.S.C. § 1746.
The fifth element, lack of authorization for the public performance of the five songs at issue
by Defendants, is established and undisputed by Defendants.

“To legally publicly perform

copyrighted musical material one must either obtain permission to do so from the owner(s) of the
copyrights or from the owner’s representatives.” Id. (quoting Collins, 705 F.Supp. at 965). The
Stevens Declaration verifies Defendants’ admission that Defendants neither entered into a BMI
license agreement, nor were the performances otherwise authorized. (Stevens Decl. at ¶ 10). The
undisputed evidence shows that although Fifteen was not licensed to perform songs in the BMI
repertoire, Defendants continued to publicly perform copyrighted music without permission after
being instructed to cease, as indicated by the Certified Infringement Report. (Id. at ¶¶ 11-14, exhibits
attached thereto). For these reasons, the Court finds BMI has established a prima facie case for music
copyright infringement.
II. Relief
Plaintiffs request injunctive relief, statutory damages for each of the claims of infringement,
costs, and reasonable attorney's fees pursuant to 17 U.S.C. §§ 502, 504, and 505.
A. Injunctive Relief
17 U.S.C. § 502(a) provides that “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 a copyright.” A plaintiff is entitled to a permanent injunction in
a copyright action when liability has been established and there is a “substantial likelihood of future
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infringements.” Cross Keys Pub. Co., Inc. v. LL Bar T Land & Cattle Co., Inc., 887 F.Supp. 219,
223 (E.D.Mo.1995). Plaintiffs seek injunctive relief to prevent further unauthorized performances
and copyright violations. In support, Plaintiffs note how BMI investigators logged unauthorized
performance of music in the BMI repertoire after Defendants received numerous letters and calls from
BMI showing Defendants did not stop playing the music in the BMI repertoire. Plaintiffs argue
injunctive relief is appropriate and necessary in this case inasmuch as Defendants will likely continue
to make unauthorized performance of BMI music and will continue to do so in the future. BMI seeks
an injunction preventing Defendants from publicly performing music in BMI’s repertoire. Defendants
failed to respond to this request.
“Injunctions regularly are issued pursuant to the mandate of Section 502, because the public
interest is the interest in upholding copyright protections.” Taylor Corp. v. Four Seasons Greetings,
LLC, 403 F.3d 958, 968 (8th Cir. 2005) (citation omitted). “The Copyright Act specifically
authorizes a federal court to ‘grant temporary and final injunctions on such terms as it may deem
reasonable to prevent or restrain infringement of a copyright.’” Id. at 967 (quoting 17 U.S.C. §
502(a)). In determining whether to grant a permanent injunction, the Court must consider three
factors: (1) the threat of irreparable harm to the moving party; (2) the balance of harm between this
harm and the harm suffered by the nonmoving party if the injunction is granted; and (3) the public
interest. Id.
Inasmuch as the Court has found there to be copyright infringement, there is a presumption
of the existence of irreparable harm based on this finding. See, e.g., Nat’l Football League v. McBee
& Bruno’s, Inc., 792 F2d. 726, 729 (8th Cir. 1986) (“Copyright law has long held that irreparable
injury is presumed when the exclusive rights of the holder are infringed.”) (citation omitted).
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Defendants have not controverted Plaintiffs’ evidence that they continue to make unauthorized
performance of BMI music. Defendants have persisted in the infringing conduct and have willfully
disregarded the copyrights held by Plaintiffs and have continued to perform copyrighted musical
compositions without executing a licensing agreement. The harm Plaintiffs face is irreparable. It is
reasonable to find that an injunction is necessary to prevent future infringement. The balance of
hardships favors an injunction. There is no cognizable harm to Defendants in being enjoined from
doing something that is against the law and for which they have been found to be doing. See Taylor,
403 F.3d at 968 (harm to the defendant is minimal because the defendant could continue to sell other
designs in its portfolio).
Injunctions regularly issue pursuant to the mandate of section 502, because the public interest
is the interest in upholding copyright protections. Since Congress has elected to grant certain
exclusive rights to the owner of a copyright in a protected work, it is axiomatic that the public interest
can only be served by upholding copyright protections and, correspondingly, preventing the
misappropriation of the skills, creative energies, and resources which are invested in the protected
work. Taylor, 403 F.3d at 968. The public interest weighs in favor of an injunction. The general rule
applies here: the public interest is in favor of upholding copyright protections and the copyright
holder’s exclusivity. Accordingly, the Court will grant Plaintiffs’ request for injunctive relief.
B. Statutory Damages
Under the Copyright Act, a copyright owner may elect to recover an award of statutory
damages instead of actual damages and lost profits. 17 U.S.C. § 504(c)(1). For each non-innocent
infringement, the court must award “not less than $750 or more than $30,000 as the court considers
just.” Id. “Within these statutory limits, the assessment of damages lies within the court’s sound
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discretion and sense of justice.” Lorimar Music, 2010 WL 3022962, *6 (quoting Halnat Pub. Co.
v. L.A.P.A., Inc., 669 F.Supp. 933, 937 (D. Minn. 1987). In awarding statutory damages, the court
may consider the following factors: (1) expenses saved by defendants in connection with the
infringements; (2) revenues lost by plaintiffs; and (3) whether the infringement was willful and
knowing or accidental and innocent. Casey v. Gentry, 1989 WL 128266, *4 (W.D. Mo. July 10,
1989) (citing Halnat, 669 F.Supp. at 937). Courts generally agree that statutory damages should
exceed unpaid licensing fees to emphasize that “it costs less to obey the copyright laws than to violate
them.” Id. (citing Music City Music v. Alfa Foods, Ltd., 616 F.Supp. 1001, 1003 (E.D. Va. 1985).
“The court’s award should be designed to compensate plaintiffs as well as to punish defendant[s].”
Prater Music v. Williams, 5 USPQ2d 1813, 1816 (W.D. Mo. 1987).
BMI argues the record supports a finding that Defendants deliberately violated BMI’s rights.
BMI contends Defendants knowingly and willfully authorized and permitted the public performance
of copyrighted songs from BMI's repertoire at Fifteen in connection with the operation of this
business. As set forth in the Stevens Declaration, BMI first contacted Defendants on July 24, 2009
advising Defendants of the need to enter into a license agreement. Between July 2009 and April
2011, BMI sent letters and repeatedly advised them of the need to enter into a license agreement.
Despite numerous letters and calls, to date, Defendants have not executed a license agreement or
paid any license fees. Based on the uncontroverted record, Plaintiffs argue they should be awarded
damages well in excess of the statutory minimum. For the five acts of infringement set forth in the
Complaint, BMI requests a total award of $35,000, representing an award of approximately $7,000
for each of the five infringed works. Inasmuch as Defendants have not addressed BMI’s request for
statutory damages, the Court will order the parties to submit supplemental briefing addressing this
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issue.
C. Attorney’s Fees
17 U.S.C. § 505 provides that “in any civil action under this title, the court in its discretion
may allow the recovery of full cost 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.” Attorney’s fees are routinely awarded to prevailing
plaintiffs under the Copyright Act to encourage the prosecution of copyright infringement actions.
Micromanipulator Co., Inc. v. Bough, 779 F.2d 255, 259 (5h Cir. 1985) (“Although attorney’s fees
are awarded in the trial court’s discretion, they are the rule rather than the exception and should be
awarded routinely.”).
BMI argues that an attorney’s fee award is appropriate in this case because Defendants’
intentionally ignored their obligation under the Copyright Act and forced them into litigation to
enforce their rights. Counsel for BMI has submitted a declaration setting out the number of hours
spent litigating this action against Defendants, 63, and the total lodestar amount of attorney and
paralegal time at $14,993.75, including the professional discount given as part of its engagement with
BMI. (Walter Decl. at ¶¶ 3-13). The costs incurred through December 27, 2012 is $1,068.86,
consisting of filing fees, process service fees, and legal research costs. (Id. at ¶ 14). Although BMI
has submitted billing records, Defendants failed to address BMI’s request for attorneys fees in any
responsive pleadings. The Court will direct Defendants to submit supplemental briefing on this issue.

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For the foregoing reasons, the Court finds that Defendants MWS, LLC and Mark D. Winfield
jointly and severally liable for the five acts of copyright infringement for the public performance of
five copyrighted musical compositions.
IT IS HEREBY ORDERED that BMI’s Motion to Strike Exhibits to Defendants’ Motion
for Summary Judgment (ECF No. 32) is GRANTED.
IT IS FURTHER ORDERED that BMI’s Motion for Summary Judgment
(Docket No. 27) is GRANTED in favor of BMI and against Defendants on the issue of liability. The
parties shall submit supplemental briefing on the issue of statutory damages and attorney’s fees and
costs as deemed appropriate.
IT IS FURTHER ORDERED that BMI’ request for injunctive relief will be granted.
Defendants are enjoined from publicly performing any of the musical works in BMI’s repertoire
unless Defendants execute a licensing agreement.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
29) is DENIED.
A separate Judgment in accordance with this Memorandum and Order is entered this same
date.
/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 8th

day of August, 2013.

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