BROADCAST MUSIC, INC. et al v. HEMINGWAY'S CAFE, INC. et al
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 6/28/2017. (mps)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BROADCAST MUSIC INC., et al.,
HEMINGWAY’S CAFÉ, INC., d/b/a
HEMINGWAY’s CAFÉ, et al.,
CIVIL ACTION NO. 15-6806 (MLC) (DEA)
COOPER, District Judge
Plaintiffs Broadcast Music, Inc., a “performing rights society” that licenses the rights
to publicly perform copyrighted music on behalf of the copyright owners, and nine copyright
owners have filed suit against Defendants Hemingway’s Café, Inc., Marilyn Craparotta, and
Vincent Craparotta, III, alleging ten acts of copyright infringement for publicly performing
copyrighted music without a license. (Dkt. 1 at 2–6.)1
Plaintiffs filed this motion for summary judgment seeking judgment in their favor on
their copyright claims, statutory damages from Defendants jointly and severally, and
attorney’s fees and costs. (Dkt. 18.) We have considered all the filings, and resolve the
matter without oral argument. See L.Civ.R. 78.1(b).
The Court will cite to the documents filed on the Electronic Case Filing System (“ECF”) by the
designation of “dkt.” Pincites reference ECF pagination.
For the following reasons, we will grant Plaintiffs’ motion for summary judgment,
enter judgment in their favor, and award statutory damages and reasonable attorney’s fees and
Plaintiff Broadcast Music, Inc. (BMI) is a “performing rights society” that licenses, on
behalf of the copyright owners, the right to publicly perform approximately 10.5 million
copyrighted musical compositions. (Dkt. 18-16 at 1–2.) BMI obtains these rights from the
copyright owners, which may be either the composer or the music publishing company. (Id.)
BMI enters into “blanket license agreements” with various venues, such as restaurants,
nightclubs, and concert halls, and grants them the right to stage performances of any of the
musical compositions. (Id.)
The other plaintiffs, Stone Diamond Music Corp., Songs of Universal, Inc., Chrysalis
Standards, Inc., Dandelion Music Co., EMI Blackwood Music, Inc., Song A Tron Music,
Sony/ATV Songs LLC, Sony/ATV Latin Music Publishing, and Universal Music-Z Tunes
LLC, are the copyright owners of the specific musical compositions at issue in this litigation.
(Dkt. 1 at 2–3; dkt. 18-16 at 1–3.)
Defendant Hemingway’s Café, Inc. (Hemingway’s Café or Hemingway’s) is a New
Jersey corporation with a principal place of business in Seaside Heights. (Dkt. 18-2 at 2; dkt.
19-1 at 1.) Hemingway’s advertised as a “20,000-square-foot entertainment paradise” that is
the “premiere nightlife venue at the Jersey Shore with live entertainment, some of the greatest
local DJs and bands, and the largest dance floor at the Jersey Shore.” (Dkt. 18-2 at 3; dkt. 191 at 1.)
Defendant Marilyn Craparotta is the President of Hemingway’s Café, Inc. and she has
a direct financial interest in the corporation. (Dkt. 18-2 at 4; dkt. 19-1 at 2.) In 2014, as
President, Ms. Craparotta had the ability to direct and control the activities of Hemingway’s
and to supervise employees. (Dkt. 18-2 at 4; dkt. 19-1 at 2.)
Defendant Vincent Craparotta, III has been the manager of Hemingway’s Café since
June 2010. (Dkt. 18-2 at 5; dkt. 19-1 at 2; dkt. 19-12 at 1; dkt. 22 at 2.) As manager, his
responsibilities included “taking care of all the day to day operations” of Hemingway’s,
including “scheduling, overseeing ordering, booking entertainment, parties, arranging
advertising, and overseeing operations whenever Hemingway’s was open.” (Dkt. 18-2 at 5;
dkt. 19-1 at 2.) In 2013, Mr. Craparotta was also an owner of Hemingway’s, had a financial
interest in the corporation, and had the right to direct and control the activities of
Hemingway’s and supervise employees. (Dkt. 18-2 at 5; dkt. 19-1 at 2.)
As part of Hemingway’s operation, Defendants allow musical compositions to be
publicly performed at the venue. (Dkt. 18-2 at 2; dkt. 19-1 at 1.) Hemingway’s advertises
live music performances on its website and other social media pages. (Dkt. 18-2 at 2; dkt. 191 at 1.)
From June 2010 until May 2016, Defendants did not have a license from BMI for the
public performance of BMI-licensed musical compositions. (Dkt. 18-2 at 8; dkt. 19-1 at 2.)
During this period, BMI began sending letters to Defendants advising them that a license was
required to publicly perform musical compositions licensed by BMI and offering a license
agreement. (Dkt. 18-2 at 3; dkt. 19-1 at 1.) BMI then sent letters instructing Defendants to
cease and desist from any public performances of BMI-licensed music at Hemingway’s.
(Dkt. 18-2 at 3, 9; dkt. 18-9; dkt. 19-1 at 1, 3.)2
The following ten BMI-licensed musical compositions were publicly performed at
Hemingway’s: “Technologic” on July 14, 2013; “Suavemente” on May 10, 2014; “Show Me
Love” on May 11, 2014; and “Ain’t Too Proud To Beg,” “I Can’t Help Myself,” “It’s Not
Unusual,” “Just My Imagination (Running Away with Me),” “Put Your Head on My
Shoulder,” “Some Kind of Wonderful, ” and “Then You Can Tell Me Goodbye” on October
2, 2014. (Dkt. 18-2 at 6–8; dkt. 18-16 at 2; dkt. 18-17; dkt. 18-18; dkt. 18-19; dkt. 18-20; dkt.
18-21; dkt. 18-22; dkt. 18-23; dkt. 18-24; dkt. 18-25; dkt. 18-26; dkt. 19-1 at 2–3.) Mr.
Craparotta booked the individuals who performed the music at Hemingway’s on July 14,
2013, May 10, 2014, May 11, 2014, and October 2, 2014, and he was present at
Hemingway’s on each of these dates. (Dkt. 18-2 at 5; dkt. 19-1 at 2.)
On September 11, 2015, Plaintiffs filed suit against Defendants alleging ten counts of
copyright infringement and seeking the imposition of statutory damages. (Dkt. 1.)3
Defendants did not enter into a licensing agreement with BMI until June 2016; the agreement
was made retroactive to May 1, 2016. (Dkt. 18-2 at 4, 9; dkt. 19-1 at 2–3; dkt. 19-12 at 4; dkt.
22 at 3.)
The parties dispute whether Defendants received all letters that BMI sent. BMI asserts that it sent
forty-seven letters to Defendants. (Dkt. 18-2 at 3.) Defendants Hemingway’s and Vincent Craparotta,
III (but not Defendant Marilyn Craparotta) acknowledge that they received letters from BMI, but do
not admit to the number. (Dkt. 19-1 at 1.)
Defendants filed an Answer (dkt. 8), and then moved to file an Amended Answer (dkt. 20) to raise
two new affirmative defenses. That motion was denied (dkt. 29), and there are no affirmative
defenses in the case for us to consider.
Summary judgment is proper “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.” Fed. R. Civ.
P. 56(a). The non-movant must then present evidence that raises a genuine dispute of
material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Material facts
are those “that could affect the outcome” of the proceeding, and “a dispute about a material
fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for
the non-moving party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (internal
citation and quotation omitted). This evidence may include “citing to particular parts of
materials in the record” or a “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c).
Our analysis proceeds in three parts. First, we assess whether Plaintiff’s copyrighted
music was infringed. Second, we discuss who can be held liable for the infringement. Third,
we consider statutory damages. Based on the evidence presented, we conclude that ten
musical compositions copyrighted by Plaintiffs were infringed, that Defendants Hemingway’s
Café, Inc., Marilyn Craparotta, and Vincent Craparotta, III are jointly and severally liable for
those infringements, and that statutory damages should be awarded to Plaintiffs.
To establish copyright infringement under the Copyright Act, a plaintiff must
demonstrate: “(1) ownership of a valid copyright; and (2) unauthorized copying of original
elements of the plaintiff's work.” Dun & Bradstreet Software Servs., Inc. v. Grace
Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002). “Copying refers to the act of infringing
any of the exclusive rights that accrue to the owner of a valid copyright, as set forth at 17
U.S.C. § 106, including the rights to distribute and reproduce copyrighted material.” Kay
Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 207 (3d Cir. 2005) (internal quotations
With respect to infringement of a copyright based on unauthorized public performance
of a musical composition, a plaintiff must demonstrate: “(1) originality and authorship of the
composition; (2) compliance with the formalities of the Copyright Act; (3) proprietary rights
in the work involved; (4) public performance of the composition involved for profit; and (5)
lack of authorization for public performance.” Broad. Music, Inc. v. 84-88 Broadway, Inc.,
942 F. Supp. 225, 229 (D.N.J. 1996); accord Broad. Music, Inc. v. Prana Hospitality, Inc., 158
F. Supp. 3d 184, 191 (S.D.N.Y. 2016). “Innocent intent is generally not a defense to
copyright infringement.” Williams Electronics v. Artic Int’l, Inc., 685 F.2d 870, 878 (3rd Cir.
Defendants do not challenge the existence of any of the ten violations. The facts
establishing the violations are not in dispute. We find that Plaintiffs have demonstrated that
they are entitled to summary judgment on their copyright claims against Defendants.
For each of the ten musical compositions, Plaintiffs have established the names of the
authors and publishers of the composition, the date of the copyright registration, the
registration number, as well as the ownership of each composition. (Dkt. 1 at 7–10; dkt. 1816 at 2; dkt. 18-17 (“Ain’t Too Proud To Beg”); dkt. 18-18 (“I Can’t Help Myself”); dkt. 1819 (“It’s Not Unusual”); dkt. 18-20 (“Just My Imagination (Running Away with Me)”); dkt.
18-21 (“Put Your Head on My Shoulder”); dkt. 18-22 (“Show Me Love”); dkt. 18-23 (“Some
Kind of Wonderful”); dkt. 18-24 (“Suavemente”); dkt. 18-25 (“Technologic”); dkt. 18-26
(“Then You Can Tell Me Goodbye”).). Therefore, we find that the Plaintiffs have
demonstrated the first three elements of direct infringement—the originality and authorship of
each of the ten musical compositions, compliance with the Copyright Act, and BMI’s
ownership of each of the ten copyrights. See Prana Hospitality, 158 F. Supp. 3d at 192
(affidavit and documentation sufficient to establish first three elements of copyright
Defendants do not dispute that these ten musical compositions were each publicly
performed once at Hemingway’s Café on July 14, 2013 (one performance), May 10, 2014
(one performance), May 11, 2014 (one performance), and October 2, 2014 (seven total
performances). (Dkt. 18-2 at 6–7; 18-10 at 3– 5; dkt. 18-11 (July 2013); dkt. 18-12 (May
2014); dkt. 18-13 (Oct. 2014); dkt. 19-1 at 2–3.) Lastly, Defendants admit that they were not
licensed to publicly perform any of these ten musical compositions on these days. (Dkt. 18-2
at 8; dkt. 19-1 at 2.)
There is no genuine issue of material fact that Defendants committed ten acts of
copyright infringement, in violation of the Copyright Act, by publicly performing ten musical
compositions owned by Plaintiffs without authorization. Therefore, we will enter summary
judgment in favor of Plaintiffs on their copyright infringement claims.
Anyone who violates the rights of a copyright owner pursuant to the Copyright Act is
an infringer of the copyright. 17 U.S.C. § 501(a). An individual may be held liable, under
secondary liability theories, even if that person is not the person who performed the protected
musical composition. Secondary liability, including contributory and vicarious infringement,
“does not exist in the absence of direct infringement by a third party.” Leonard v. Stemtech
Int’l, Inc., 834 F.3d 376, 386 (3d Cir. 2016). “While the lines between direct infringement,
contributory infringement and vicarious liability are not clearly drawn, in general,
contributory liability is based on the defendant’s failure to stop its own actions which facilitate
third-party infringement, while vicarious liability is based on the defendant’s failure to cause a
third party to stop its directly infringing activities.” Id. at 386 n.8 (internal quotations
omitted). A plaintiff does not need to sue the third party to file suit against a defendant under
theories of secondary liability. Arista Records, Inc. v. Flea World, Inc., 356 F. Supp. 2d 411,
416 (D.N.J. 2005)
Vicarious infringement occurs when a person or entity “profit[s] from direct
infringement while declining to exercise a right to stop or limit it.” MGM Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 930 (2005). To demonstrate vicarious infringement, a plaintiff
must establish that the defendant had “(1) the right and ability to supervise or control the
infringing activity; and (2) a direct financial interest in such activities.” Leonard, 834 F.3d at
388. A plaintiff need only demonstrate these two elements and does not need to prove a
defendant’s knowledge of the infringing activity. Arista Records, Inc. v. Flea World, Inc.
(Arista Records II), No. 03-2670, 2006 WL 842883, at *9 (D.N.J. Mar. 31, 2006).
“One infringes contributorily by intentionally inducing or encouraging direct
infringement.” Grokster, 545 U.S. at 930. For contributory infringement, a plaintiff must
demonstrate that the defendant “knew that the third party was directly infringing” and that the
defendant “materially contributed to or induced the infringement.” Leonard, 834 F.3d at 387.
Actual knowledge is not required; constructive knowledge of infringement is sufficient to
meet this burden. Arista Records II, 2006 WL 842883, at *14; see also A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1020 (9th Cir. 2001) (contributory negligence only requires that
the secondary infringer “know or have reason to know of direct infringement” (quotation
omitted)). “Willful blindness is knowledge” of infringement. In re Aimster Copyright Litig.,
334 F.3d 643, 650 (7th Cir. 2003).
Individual infringers can be held personally liable, jointly and severally, with corporate
infringers for each act of copyright infringement. Columbia Pictures Indus. v. Redd Horne,
Inc., 749 F.2d 154, 160 (3d Cir. 1984); Premium Sports, Inc. v. Pereira, No. 14-6240, 2015
WL 5770517, at *4 (D.N.J. Sept. 30, 2015).
We find no genuine issue of material fact that Defendants Hemingway’s Café, Marilyn
Craparotta, and Vincent Craparotta, III are each liable for copyright violations.
Hemingway’s Café, Inc.
Defendant Hemingway’s Café, Inc. is vicariously liable for all ten acts of copyright
infringement that occurred on premises. See Leonard, 834 F.3d at 388; Arista Records II,
2006 WL 842883, at *9. Defendants do not contest this. Hemingway’s has acknowledged
that on July 14, 2013, May 10, 2014, May 11, 2014, and October 2, 2014, it had the right and
ability to supervise and control the public performances on the premises. (Dkt. 18-2 at 4; dkt.
19-1 at 2.) Hemingway’s had a direct financial interest in these performances. (Dkt. 18-2 at
4; dkt. 19-1 at 2.)
Plaintiffs seek to hold Defendant Marilyn Craparotta vicariously liable for nine of the
ten acts of copyright infringement —those on May 10, 2014, May 11, 2014, and October 2,
2014. (Dkt. 18-1 at 17.) Plaintiffs do not seek liability against Ms. Craparotta for the
infringement on July 14, 2013, because she disputes that she was President of Hemingway’s
Café on that date. (Dkt. 18-1 at 17 n.2.) In response, Ms. Craparotta first admits that she had
the right and ability to direct and control the activities of Hemingway’s on the three days in
question, and that she had a direct financial interest in Hemingway’s. (Dkt. 19 at 9.) She
adds that “Admittedly, the admissions constitute liability under the case law.” (Id.) She
argues, however, that liability should not be imposed because had she been contacted in
December 2013, then the nine acts of infringement on those three days in 2014 would not
have occurred. (Id. at 9–10.) Plaintiffs note that BMI notified Ms. Craparotta by sending
letters to Hemingway’s Café, where she was owner and president. (Dkt. 21 at 7.) Plaintiffs
also point out that knowledge is not required to prove vicarious liability. (Id. at 7–8.)
We find that the undisputed evidence demonstrates that Defendant Marilyn Craparotta
was vicariously liable for nine acts of copyright infringement at Hemingway’s Café on May
10, 2014, May 11, 2014, and October 2, 2014. On those dates, Ms. Craparotta was the
President of Hemingway’s Café, Inc. and she had a direct financial interest in the corporation.
(Dkt. 18-2 at 4; dkt. 19-1 at 2.) In that capacity, she had the ability to direct and control the
activities of Hemingway’s and to supervise employees. (Dkt. 18-2 at 4; dkt. 19-1 at 2.)
Plaintiffs do not need to demonstrate that she had knowledge of the infringing activities at the
time of infringement. See Arista Records II, 2006 WL 842883, at *9. Therefore, we
conclude that Plaintiffs have demonstrated that Defendant Marilyn Craparotta is vicariously
liable for nine acts of copyright infringement.
Vincent Craparotta, III
Plaintiffs ask us to hold Defendant Vincent Craparotta, III vicariously liable for the
one act of copyright infringement on July 14, 2013 and contributorily liable for all ten acts of
copyright infringement. (Dkt. 18-1 at 18 & n.3.) Mr. Craparotta acknowledges that “[his]
conduct falls within the legal definition for contributory negligence,” but he argues that he
was inexperienced as a manager and also that Plaintiffs should have filed suit at an earlier
time. (Dkt. 19 at 11–12.)
Defendants do not contest that Mr. Craparotta is vicariously liable for one act of
copyright infringement on July 14, 2013. He has admitted that, on that date, he was owner of
Hemingway’s Café and a direct financial interest in it, and that he had the right and ability to
direct and control Hemingway’s activities and to direct and supervise Hemingway’s
employees. (Dkt. 18-2 at 5; dkt. 19-1 at 2.) Thus, we find no genuine issue of material fact
that Defendant Vincent Craparotta, III is vicariously liable for the copyright infringement on
July 14, 2013. See Leonard, 834 F.3d at 388; Arista Records II, 2006 WL 842883, at *9.
On July 14, 2013, May 10, 2014, May 11, 2014, and October 2, 2014, Mr. Craparotta
was manager of Hemingway’s. (Dkt. 18-2 at 5; dkt. 19-1 at 2.) On each of these days, he
was present at Hemingway’s, and he booked and/or hired the individuals who publicly
performed the music at Hemingway’s on those days. (Dkt. 18-2 at 5; dkt. 19-1 at 2.) The
record demonstrates that he “knew that the third party was directly infringing” and that he
“materially contributed to or induced the infringement.” See Leonard, 834 F.3d at 387.
Contrary to Defendants’ arguments, Mr. Craparotta’s inexperience as manager is not germane
to our analysis because his actual knowledge of the infringing activities is not required for a
finding of contributory infringement. See A&M Records, Inc., 239 F.3d at 1020; Arista
Records II, 2006 WL 842883, at *14. Therefore, we find that Defendant Vincent Craparotta,
III is contributorily liable for all ten acts of copyright infringement.
Plaintiffs ask us to impose statutory damages from Defendants’ infringing activities,
rather than actual damages. (Dkt. 18-1 at 22.) Specifically, they seek $11,000 per act of
infringement, totaling $110,000, which they contend is less than twice the amount BMI would
have received had Defendants entered into a license agreement. (Dkt. 18-1 at 22–27; dkt. 182 at 10.) They cite $56,595 as the cost for Defendants to have secured a license agreement.
(Dkt. 18-10 at 6.) Defendants dispute that amount. (Dkt. 19-1 at 3.)4
Instead of pursuing actual damages, a copyright owner may seek an award of statutory
damages per infringement “in a sum of not less than $750 or more than $30,000 as the court
Defendants moved to amend their Answer to raise the affirmative defenses of the doctrine of
avoidable consequences and the failure to mitigate damages. (Dkt. 20.) Their motion to amend was
denied. (Dkt. 29.) We therefore do not consider these affirmative defenses. Nonetheless, we note
that it is unclear whether these defenses would even be applicable against a claim seeking statutory
damages under the Copyright Act. See Purzel Video GmbH v. St. Pierre, 10 F. Supp. 3d 1158, 1169
(D. Colo. 2013) (“A copyright plaintiff’s exclusive pursuit of statutory damages invalidates a failureto-mitigate defense.”).
considers just.” 17 U.S.C. § 504(c)(1). At the request of the copyright owner, the court may
find that the infringer acted willfully and increase the damages for an infringement up to
$150,000. 17 U.S.C. § 504(c)(2). We have discretion to impose damages in an amount
between the statutory minimum and maximum. See Broad. Music, Inc. v. Crocodile Rock
Corp., 634 F. App’x 884, 886 (3d Cir. 2015) (citing F.W. Woolworth Co. v. Contemporary
Arts, Inc., 344 U.S. 228, 232 (1952)); see also Broadcast Music v. DeGallo, Inc., 872 F. Supp.
167, 169 (D.N.J. 1995) (““[T]he statute was designed to deal with infringers ranging from
relatively small nightclubs, such as the one presented here, to large scale pirates, broadcasting
across the country on electronic media. With due allowance for the level of culpability
involved, the penalty must be proportionate to the extent of the infringement.”).
“Statutory damages serve the dual purposes of compensation and deterrence: they
compensate the plaintiff for the infringement of its copyrights; and they deter future
infringements by punishing the defendant for its actions.” Broad. Music, Inc. v. Spring Mt.
Area Bavarian Resort, LTD, 555 F. Supp. 2d 537, 544 (E.D. Pa. May 21, 2008) (quotation
omitted). An infringer should not reap a benefit from its violation of the law. Id. Thus, we
have explained that “[s]tatutory damages should exceed the unpaid license fees so that
defendant will be put on notice that it costs less to obey the copyright laws than to violate
them.” Microsoft Corp. v. Gonzales, No. 06-4331, 2007 WL 2066363, at *6 (D.N.J. July 13,
When assessing the appropriate amount of statutory damages, we consider four
(1) expenses saved and profits reaped by the infringer; (2)
revenues lost by the plaintiff; (3) the strong public interest in
insuring the integrity of the copyright laws; and (4) whether the
infringement was willful and knowing or innocent and
Id. at *5 (citing Broadcast Music, Inc. v. Golden Horse Inn Corp., 709 F. Supp. 580, 581
(E.D. Pa. 1989)). “Because several of the factors are difficult to monetize, the defendant’s
intent and behavior are the foremost consideration.” Id. Thus, we may consider the
willfulness of the Defendants’ conduct, even though Plaintiffs have not sought enhanced
damages under the willful provision. Prana Hospitality, 158 F. Supp. 3d at 197 (“Where, as
here, the plaintiff does not seek a willfulness enhancement, it is still appropriate for the Court
to consider evidence of willfulness in determining where in the range between $750.00 and
$30,000.00 damages should be set.” (quotation omitted)).
We have previously noted that courts throughout the Third Circuit commonly award
statutory damages to a plaintiff in amounts between two to five times the amount that a
defendant would have paid in licensing fees. Broad. Music, Inc. v. Publick House Partners,
LLC, No. 13-03326, 2015 WL 3396804, at *3 (D.N.J. May 26, 2015) (collecting cases);
accord Broad. Music, Inc. v. Amici III, Inc., No. 14-5002, 2014 WL 7271915, at *1 n.1
(D.N.J. Dec. 16, 2014) (citing cases imposing damages two to five times greater than
licensing fees to show “rough baseline” of what courts nationwide have done).
The first item we must resolve is the amount of BMI’s lost fees—that is, the amount in
fees Defendants would have paid BMI for a licensing agreement had they not engaged in the
infringing conduct. BMI “estimated” the fees at “approximately $56,595.00.” (Dkt. 18-10 at
6.) Defendants note that the record supports a different amount. (Dkt. 19-1 at 3.) On October
24, 2014, BMI sent letters to Marilyn Craparrota and Vincent Craparrotta, III indicating that
the total annual licensing fees that they owed for the five years between June 1, 2010 and May
31, 2015 was $47,520.00. (Dkt. 18-4 at 65–68; dkt. 18-14 at 51–53.) The letters also
included a one-time fee of $1,020.55 for “Music Researcher Costs.” (Dkt. 18-4 at 65–68; dkt.
18-14 at 51–53.) Defendants do not dispute the costs for annual licensing fees set forth in the
letters. (Dkt. 19-1 at 3.)5
Plaintiffs seek statutory damages based on the entire time that Defendants operated
without a licensing fee agreement. Plaintiffs, however, make no argument as to why they
should receive statutory damages for periods of time when no asserted violation occurred. All
ten statutory violations (on July 14, 2013, May 10, 2014, May 11, 2014, and October 2, 2014)
were within a timeframe that would have been covered by just two annual licensing periods
(June 1, 2013 to May 31, 2014 and June 1, 2014 to May 31, 2015) —not across the nearly six
years of annual licensing periods June 1, 2010 through April 2016. We have not found any
copyright violations by Defendants, nor have Plaintiffs claimed that any occurred, during the
annual periods of June 1, 2010 to May 31, 2011, June 1, 2011 to May 31, 2012, June 1, 2012
to May 31, 2013, or June 2015 to April 2016. We will not impose statutory damages for a
time period where we have not found, nor were we asked to find, any violations of the
copyright laws. Plaintiffs chose to seek statutory damages, rather than actual damages, and
while Plaintiffs may have had a claim for actual damages during these periods where
We note that the estimate cited by Plaintiffs from the Brian Mullaney Declaration covers the time
between June 2010 and April 2016 (dkt. 18-10 at 6), whereas the letters cover the time between June
2010 through May 2015 (dkt. 18-4 at 65–68; dkt. 18-14 at 51–53). Because we ultimately conclude
that the relevant time period for the fees that Plaintiffs would have paid to license the music is limited
to the years where we have found that Defendants infringed the copyright, we need not resolve any
discrepancy between the Mullaney Declaration and the October 24, 2014 letters.
Defendants did not have a licensing agreement, we will not impose statutory damages on
Defendants for periods when there were no statutory violations.6
As such, we find that the appropriate basis to measure the statutory damages is the
amount in licensing fees Defendants would have paid to BMI for the two annual periods, June
1, 2013 to May 31, 2014 and June 1, 2014 to May 31, 2015, during which time the ten
infringements of Plaintiff’s music occurred. BMI indicated to Defendants that the licensing
fee for June 1, 2013 to May 31, 2014 was $9,680.00 and that the licensing fee for June 1,
2014 to May 31, 2015 was $9,900.00. (Dkt. 18-4 at 65–68; dkt. 18-14 at 51–53.) As those
fee amounts are uncontested by Defendants, we will adopt them.
Next, in order to award statutory damages, we must decide the appropriate multiplier
to apply to the base amount of the unpaid licensing fees. As discussed, we generally find a
multiplier of two to five times the amount that a defendant would have paid in licensing fees
as appropriate for assessing statutory damages. Publick House Partners, 2015 WL 3396804,
at *3; Amici III, 2014 WL 7271915, at *1 n.1.
Although Plaintiffs do not seek a willfulness enhancement, we still consider the
willfulness of Defendants’ infringement. See Prana Hospitality, 158 F. Supp. 3d at 197. We
place substantial weight on Defendant’s intent and willful conduct. See Microsoft Corp.,
2007 WL 2066363, at *5. Defendants operated without a licensing agreement with BMI for
nearly six years but had public performances of Plaintiffs’ copyrighted music. (Dkt. 18-2 at
8; dkt. 19-1 at 2.) Throughout this time, BMI made numerous attempts, including sending
We also note the potential statute of limitations issues on any alleged violation accruing more than
three years before the initiation of the suit. See 17 U.S.C. § 507(b).
forty-seven letters, to warn Defendants of their copyright infringement and to offer
Defendants the opportunity to enter into a licensing agreement, yet Defendants ignored those
attempts. (Dkt. 18-2 at 3; dkt. 19-1 at 1–2.) Indeed, even after the initiation of this lawsuit in
September 2015, Defendants continued with public performances of Plaintiffs’ copyrighted
music through May 2016 before entering into a licensing agreement in June 2016 made
effective retroactively to May 1, 2016. (Dkt. 18-2 at 9; dkt. 19-1 at 3.) Given the repeated
infringing conduct that we find to be willful, we impose statutory damages three times the
amount that Defendants would have paid to BMI in licensing fees for the two annual periods
of June 1, 2013 to May 31, 2014 and June 1, 2014 to May 31, 2015. See, e.g., Publick House
Partners, 2015 WL 3396804, at *3 (imposing statutory damages three times the unpaid license
fees given the defendants’ “willful disregard of [Plaintiff’s] persistent communications and
warnings to Defendants, including dozens of letters and seventy phone calls”).
While we have only found statutory violations between June 1, 2013 and May 31,
2015, and we use the annual licensing fee for those two years as the base, we are nonetheless
mindful of the fact that it is undisputed that Defendants did not have a licensing fee the entire
time from June 1, 2010 through April 30, 2016. One of the aims of statutory damages is to
ensure that infringers do not benefit from their infringing activity. Were we to impose a
penalty less than the total cost of the nearly six years of unpaid licensing fees, Defendants
would receive a windfall from their conduct, and would still be in a better position having
failed to secure a license than having paid for the licensing agreement, because the penalty for
infringement would be less than the cost for licensing for the entire period. Thus, imposing
the penalty of three times the base licensing fee also ensures that Defendants pay more in
penalty than they would have, had they simply complied with the copyright laws in the first
place and licensed the copyrighted music that they had publicly performed. See Spring Mt.
Area Bavarian Resort, 555 F. Supp. 2d at 544; Microsoft Corp., 2007 WL 2066363, at *6.
We will impose statutory damages as follows:
For the three violations (July 14, 2013, May 10, 2014, and May 11, 2014) occurring
during the June 1, 2013 to May 31, 2014 licensing period, we award statutory damages in
favor of BMI in the amount of $29,040.00, which is three times the price BMI listed for the
licensing fee for the period ($9,680.00).
For the seven violations on October 2, 2014 that occurred during the June 1, 2014 to
May 31, 2015 licensing period, we award statutory damages in favor of BMI in the amount of
$29,700.00, which is three times the price BMI listed for the licensing fee for the period
In total, the amount of damages awarded to Plaintiffs is $58,740.00.
Defendant Hemingway’s Café and Defendant Vincent Craparotta, III are jointly and
severally liable for the entire amount; Defendant Marilyn Craparotta is jointly and severally
liable for $49,060.007 of that total sum for nine of the violations (excluding the violation on
July 14, 2013, as discussed supra, Section I.B.2). See Columbia Pictures, 749 F.2d at 160;
Premium Sports, 2015 WL 5770517, at *4.8
We calculate this sum as $19,360.00 for the May 10 and 11, 2014 violations and the full $29,700.00
for the seven violations on October 2, 2014.
In their conclusion, Plaintiffs also ask for an award of interest pursuant to 28 U.S.C. § 1961. (Dkt.
18-1 at 28.) Plaintiffs do not explain why we should exercise our discretionary authority and award
interest. Because Plaintiffs have not demonstrated that this action rises to the level of an exceptional
Attorney’s Fees and Costs
Plaintiffs also ask us to award attorney’s fees and costs. (Dkt. 18-1 at 27–28.)
Defendants did not oppose the award of costs and fees. The Copyright Act grants the court
discretion to “allow the recovery of full costs by or against any party other than the United
States or an officer thereof” and to “award a reasonable attorney’s fee to the prevailing party
as part of the costs.” 17 U.S.C. § 505. “Indeed, it has often been held that attorney’s fees are
awarded to prevailing copyright plaintiffs ‘generally’ or ‘ordinarily.’” Axact (PVT), Ltd. v.
Student Network Res., Inc., No. 07-5491, 2008 WL 4754907, at *3 (D.N.J. Oct. 22, 2008).
See, e.g., Yash Raj Films (USA) Inc. v. Rannade Corp., No. 01-5779, 2007 WL 1456193, at
*12 (D.N.J. May 17, 2007) (“Circumstances warranting an award of attorney’s fees to a
plaintiff include the defendant’s deliberate infringement and the need for compensation to a
party for defending or enforcing its copyrights.”) We will award attorney’s fees and costs to
For the reasons stated above, we grant Plaintiff’s motion for summary judgment, we
enter judgment in their favor awarding $58,740.00 in statutory damages, and we will award
reasonable attorney’s fees and costs.
We will enter an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: June 28, 2017
case where interest should be awarded, their request for interest is denied. See Chanel, Inc. v. Matos,
133 F. Supp. 3d 678, 689 n.11 (D.N.J. 2015).
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