Broadcast Music, Inc. et al v. The Living Room Steak House, Inc. et al

Filing 15

REPORT AND RECOMMENDATIONS re 12 MOTION for Default Judgment filed by Broadcast Music, Inc., EMI Blackwood Music, Inc., Luar Collective Inc., Moebetoblame Music, Rondor Music International Inc., Song a Tron Music, Tangerine Music Corp. For the reas ons set forth in the attached Report and Recommendation, I respectfully recommend that the Court grant Plaintiffs' motion for a default judgment, award Plaintiffs statutory damages in the amount of $16,000, plus costs and attorney's fe es totaling $8,046.90, and issue a permanent injunction prohibiting Defendants from further infringing the Plaintiffs' copyrights. Plaintiffs are hereby directed to serve copies of this Report and Recommendation upon Defendants by next-day mail by February 29, 2016, at each of their last known addresses, and to promptly file proof of service with the Clerk of the Court. Objections to the R&R are due by March 11, 2016. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 2/26/2016. (Fashakin, Emmanuel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-6298

_____________________

BROADCAST MUSIC, INC., ET AL.
Plaintiffs,
VERSUS

THE LIVING ROOM STEAK HOUSE, INC., ET AL.
Defendants.
___________________
REPORT & RECOMMENDATION
February 26, 2016
___________________

to the Honorable Frederic Block, United States Senior District Judge

On April 13, 2015, the Clerk of the
Court noted Defendants’ default pursuant to
FRCP 55(a). (ECF No. 11). On April 27,
2015, Plaintiffs filed a motion for default
judgment on their claims. In addition to a
request for injunctive relief to prevent
Defendants’
continued
infringement,
Plaintiffs seek statutory damages, and
attorneys’ fees and costs pursuant to 17
U.S.C. §§ 504(c) and 505, respectively.
Plaintiffs’ motion was referred to me for a
report and recommendation. (ECF No. 12;
Order dated 4/28/2015.)

RAMON E. REYES, JR., U.S.M.J.:

Plaintiffs Broadcast Music Inc.
(“BMI”), Moebetoblame Music, Rondor
Music International, Inc. d/b/a Irving Music,
EMI Blackwood Music, Inc., Song A Tron
Music, Luar Collective Publishing, and
Tangerine Music Corp. (collectively,
“Plaintiffs”), commenced this action against
Defendants The Living Room Steak House,
Inc. and Anna Reckovic (collectively
“Defendants”), on October 27, 2014,
alleging violations of the Copyright Act, 17
U.S.C. §§ 101 et seq. Neither defendant
filed an appearance in this action. 1

For the reasons stated below, I
respectfully recommend that Plaintiffs’
motion for default judgment be granted. I
also recommend that Plaintiffs’ motion for a
permanent injunction be granted and that
Plaintiffs be awarded $16,000 in statutory

1

Defendant Rudi Pejcinovic was voluntarily
dismissed from this action on Apr. 9, 2015. (ECF No.
9).

1

damages and $8,046.90 in attorney’s fees
and costs.

“primary responsibility for the operation and
management of that corporation and
[LRSH].” (Compl. ¶ 16). Plaintiffs further
allege that Reckovic “has the right and
ability to supervise the activities of
Defendant The Living Room Steak House
Inc. and a direct financial interest in that
corporation and [LRSH].” (Compl. ¶ 17).

BACKGROUND
Plaintiff BMI is a not-for-profit
“performing rights society” that licenses the
right to publicly perform a catalog of 8.5
million copyrighted musical works on behalf
of the owners of the respective copyrights.
(Decl. of Hope M. Lloyd (“Lloyd Decl.”) ¶¶
3, 5, ECF No. 12–4.). BMI obtains these
public
performance
rights
through
agreements with copyright owners and
subsequently grants music users, such as
restaurant owners, the right to publicly
perform works in the catalog by means of
“blanket license agreements.” (Lloyd Decl. ¶
2). The other plaintiffs in this action, from
whom BMI has acquired public performance
rights, are copyright owners of individual
musical compositions that are the subject of
this lawsuit. (ECF No. 12 (Plaintiffs’
Memorandum of Law in Support of Motion
for Default Judgment (“Pl. Br.”) at 7 2, ECF
No. 12–3; Complaint (“Compl.”) ¶¶ 3-10,
ECF No. 1). BMI then distributes the
revenue it collects in licensing fees as
royalties to its affiliated publishers and
composers, after deducting operating costs
and reasonable reserves. (Lloyd Decl. ¶ 3).

At some time prior to January 2011,
BMI became aware that LRSH was
publically playing musical performances
without obtaining a license from BMI or the
permission of the copyright owners. (Decl.
of Brian Mullaney (“Mullaney Decl.”) ¶ 3,
12–5). BMI made numerous attempts to
contact LRSH regarding the infringement.
Between January 2011 and September 2014,
BMI’s licensing personnel contacted LRSH
by phone 46 times and sent 46 letters. (Pl.
Br. at 2; Mullaney Decl. ¶ 11; Exhibit C to
Mullaney Decl. (“Ex. C”), ECF No. 12–8).
BMI’s records confirm that some of the
letters were delivered and received, and
some of the calls were answered by LRSH
staff. (Ex. C, ECF No. 12–8). This
correspondence noted that LRSH needed to
obtain licensing for the publicly played
musical performances and urged LRSH to
cease and desist from further infringement.
(Mullaney Decl. ¶¶ 3, 5–9, 11, 15–18, 22,
24, 26; Ex. C, ECF No. 12–8). BMI also
sent letters that LRSH needed to obtain
permission to publicly perform copyrighted
music in BMI’s catalog. (Mullaney Decl. ¶¶
3, 5–9, 11, 15–18, 22–24, 26; Ex. C, ECF
No. 12–8).

Defendant The Living Room Steak
House Inc. is a New York corporation that
operates and maintains the establishment
known as Living Room Steak House
(“LRSH”), located at 2402 86th Street,
Brooklyn, New York. (Compl. ¶ 11). During
the relevant time period, Plaintiffs allege
that defendant Anna Reckovic (“Reckovic”)
has served as an officer of defendant The
Living Room Steak House Inc. with the

BMI took additional measures and
sent Timothy Braunscheidel, to LRSH on
two occasions – May 17, 2014, and August
8, 2014. 3 (Mullaney Decl. ¶¶ 13, 19; Exhibit
3

Braunscheidel’s Certified Infringement Reports
noted that he did not have to pay an entry fee to
access LRSH. (Ex. B, ECF No. 12–7).

2

Reference is made to page numbers as assigned by
the ECF docketing system.

2

BMI’s attorneys. (Mullaney Decl. ¶ 24). To
date, LRSH continues to permit the public
performance of licensed music and has not
obtained a license for such performance
from either BMI or any of the other
Plaintiffs. (Mullaney Decl. ¶¶ 4, 27).

A to Mullaney Decl. (“Ex. A”), ECF No.
12–6; Exhibit B to Mullaney Decl. (“Ex.
B”), ECF No. 12–7). Braunscheidel made
audio recordings of the music being publicly
performed at LRSH and compiled written
reports (Certified Infringement Report). Of
the
recordings
made
at
LRSH,
Braunscheidel’s reports yielded that a total
of five compositions were infringed by the
Defendants:
two
compositions
(“Californication” and “Show Me Love”) on
May 17, 2014 and three compositions on
August 8, 2014 (“Respect,” “Dale Don
Dale,” and “Hit The Road Jack”). (Mullaney
Decl. ¶¶ 13,19; Ex. A, ECF No. 12–6). The
audio recordings made by Braunscheidel
were submitted to BMI Performance
Identification employees for analysis and
identification of the performed musical
works. (Mullaney Decl. ¶¶ 14, 21). The
review of Braunscheidel’s audio recordings
from May 17, 2014, confirmed the
performance of one composition – “Show
Me Love.” (Mullaney Decl. ¶ 14; Ex. A,
ECF No. 12–6). A review of the recording
from August 8, 2014, confirmed the
performance of all three compositions cited
in Braunscheidel’s report. (Mullaney Decl.
¶¶ 20-21; Ex. A, ECF No. 12–6; Ex. B, ECF
No. 12–7).

DISCUSSION
Copyright Infringement Liability
Once a default is entered against a
party, all allegations in the complaint except
for those relating to liability are assumed as
true. Greyhound Exhibitgroup Inc. v.
E.L.U.L. Realty Corp., 973 F.2d 155, 158–
59 (2d Cir. 1992). However, a court must
still consider whether the alleged facts
establish the defaulting party’s liability as a
matter of law. Finkel v. Romanowicz, 577
F.3d 79, 84 (2d Cir. 2009) (citation omitted).
Here, Plaintiffs seek a default judgment as to
their claims of copyright infringement.
To establish a prima facie claim for
copyright infringement based on the public
performance of a piece of music, the
plaintiff must show: “(1) originality and
authorship of the copyrighted work; (2)
compliance with the formalities of the
Copyright Act; (3) ownership of the
copyrights involved; (4) the defendant’s
public performance of the composition for
profit; and (5) lack of authorization for the
public performance.” Broad. Music, Inc. v.
JJ Squared Corp., No. 11–CV–5140, 2013
WL 6837186, at *4 (E.D.N.Y. Dec. 26,
2013) (citations omitted); Shapiro, Bernstein
& Co., Inc. v. Club Lorelei, Inc., No. 93–
CV–0439, 1995 WL 129011, at *2
(W.D.N.Y. Mar. 14, 1995) (citations
omitted).

On May 20, 2014, and August 11,
2014, BMI sent letters by FedEx and FirstClass Mail to the defendants advising them
of the investigations. (Mullaney Decl. ¶¶ 15,
22, 25). Through the same forms of delivery,
cease and desist letters were sent by BMI on
May 23, June 23, and August 21, 2014.
(Mullaney Decl. ¶¶ 16, 18, 23). On May 23,
2014, via FedEx and First-Class Mail, an
additional letter was sent to Reckovic,
notifying the Defendants’ of their legal
obligations. (Mullaney Decl. ¶ 17). On
September 15, 2014, BMI notified
Defendants by letters sent via First-Class
Mail, that the matter had been referred to

3

representative, who visited LRSH, noted
that the infringed songs were played at the
venue using the DJ and ceiling-mounted
speakers. (Ex. B, ECF No. 12–7).

A. Plaintiffs Satisfy the First Three
Elements of Copyright
Infringement
These first three elements are clearly
met here. Specifically, BMI represents the
other properly joined Plaintiffs who
collectively own the rights to all musical
compositions at issue and they further assert
that they have valid copyright registrations
for each of the infringed works pursuant to
the Copyright Act. (See Compl. ¶¶ 3–10).
The names and copyright registration
numbers of the copyrighted songs are
included in the “Schedule” attached to the
Complaint. (Compl. ¶¶ 7–8).

As owners and operators of the
establishment, Defendants were complicit in
the infringement by furnishing the
equipment by which the songs at issue were
performed. Defendants have a direct
financial interest in the business and it is
reasonable to infer that they have financially
benefited from engaging in and facilitating
the infringing conduct. (Compl. ¶ 12, ECF
No. 1). Certainly some financial gain has
been made from supplying live music in the
venue for the presumably paying customers
pictured eating and dancing on the website.
Living Room Steak House Home Page,
http://livingroomsteakhouse.com/home.html
(last visited Feb. 22, 2016). Indeed, the
music is not just a mere enhancement of the
customer experience; it is integral to the
establishment’s key function as a dance
club. Without music, the dance floor, DJ,
and speaker equipment would have been
useless.
Therefore,
Plaintiffs
have
established
that
Defendants’
public
performance of the composition was for
profit.

B. Defendants’ Public Performance
of the Composition was for Profit
As to the fourth element, requiring
that the Defendants’ public performance of
the composition be for profit, Plaintiffs did
not indicate particular facts to support this
element. The totality of the facts as
presented, however, allows the Court to
draw inferences sufficient to establish
LRSH’s
financial
gain
from
the
infringement. As illustrated by the floor plan
of the establishment submitted by Plaintiffs,
LRSH functioned as a restaurant and a
dance club. (Ex. B, ECF No. 12–7). It has a
dance floor, a bar, and a DJ booth in which,
a DJ performed the five copyrighted songs
that were infringed. (Ex. B, ECF No. 12–7).
Further, as of the date of this decision,
LRSH continues to market itself on its
website as an establishment with “Live DJ’s
Entertainment & Dance Floor.” Living Room
Steak
House
Home
Page,
http://livingroomsteakhouse.com/home.html
(last visited Feb. 22, 2016). The website
provides that from Thursday to Sunday, DJs
are scheduled to perform from 11:00 p.m. to
4:00 a.m. Id. Indeed, Braunscheidel, BMI’s

C. Defendants Lacked Authorization
for the Public Performance
As to the final element requiring a
showing
that
Defendants
lacked
authorization for the public performance,
Plaintiffs have demonstrated, through their
own investigation, that the musical works at
issue were performed at LRSH on several
occasions, without license and thus without
plaintiffs’ permission. (Mullaney Decl. ¶¶ 4,
13–19, ECF No. 12–5). Further, Defendants,
specifically Reckovic, was made aware of
the infringement and the need for LRSH to

4

obtain a licensing agreement in order to
lawfully perform the copyrighted music
within the establishment. (Ex. C, ECF No.
12–8). 4 As such, Plaintiffs have established
that Defendants lacked the authorization for
these public performances of the
copyrighted music.

D. The Individual Defendants are
Jointly and Severally Liable
It is well settled that “[a]ll persons
and corporations who participate in, exercise
control over, or benefit from…infringement
are jointly and severally liable as copyright
infringers.” Sygma Photo News, Inc. v. High
Soc’y. Magazine, Inc., 778 F.2d 89, 92 (2d
Cir. 1985) (citation omitted). A defendant
may be held jointly and severally liable for
vicarious infringement, “if he has the right
and ability to supervise the infringing
activity and also has a direct financial
interest in such activities.” Gershwin Pub.
Corp. v. Columbia Artists Mgmt., Inc., 443
F.2d 1159, 1162– (2d Cir. 1971) (citing
Shapiro, Bernstein & Co., 316 F.2d at 307).
Indeed, courts have found that that “dance
hall proprietor[s’can be held] liable for the
infringement of copyright resulting from the
performance of a musical composition by a
band or orchestra whose activities provide
the proprietor with a source of customers
and enhanced income.” Forties B LLC v.
Am. W. Satellite, Inc., 725 F. Supp. 2d 428,

Based on the documentary evidence, the
Court finds that Defendants are liable for the
infringement of four compositions. While
Plaintiffs’ complaint and the Mullaney
declaration allege the infringement of five
compositions, only four compositions were
ultimately confirmed after review by BMI
Performance Identification employees.
(Mullaney Decl. ¶¶ 14, 20-21). A review of
the August 8, 2014 report confirmed the
performance of all three compositions
alleged to have been played in LRSH. The
May 17, 2014 report, however, only yielded
confirmation of one of the two compositions
alleged in Braunscheidel’s report. (Ex. A,
ECF No. 12–6). 5
4
The correspondence cited in Mullaney’s declaration
notes that the initial notices were addressed to an
individual called “Inne Reckovic.” It was not until
May 17, 2013, that the notices were addressed to
Anna Reckovic. (Ex. C, ECF No.12–8). The Court
was able to find ample evidence suggesting that Inne
Reckovic is connected with both Anna Reckovic and
The Living Room Steak House. Indeed, based on a
review of the Affidavit of Service of the Summons in
this action, Inne Reckovic is listed as the co-worker
upon whom, on behalf of Anna Reckovic and The
Living Room Steak House, the Plaintiffs’ Summons
and Complaint was personally served at the LRSH
address in Brooklyn, New York on October 30, 2014.
(See ECF Nos. 7 and 8). As such, there is a basis for
finding that Anna Reckovic was on notice as to
BMI’s repeated efforts to have the defendants obtain
a license for the musical works being performed.
5
As noted in Mullaney’s declaration, the BMI
Performance Identification employees are charged
with “…review[ing] the recording to identify and/or
verify the performed musical works.” (Mullaney
Decl. ¶ 14). In accordance with this verification
process, Braunscheidel’s recordings and reports were
reviewed by BMI Performance Identification

employees. On May 20, 2014, John Davis, a BMI
employee, submitted a declaration stating that he
conducted the analysis of the May 17, 2014
recordings and Timothy Braunscheidel’s Certified
Infringement Report. (Ex. A, ECF No. 12–6). Davis’s
review yielded the verification of one composition,
“Show Me Love.” Missing from the schedule of
“Identified Songs” was “Californication,” which was
cited in Braunscheidel’s report. Plaintiffs do not
appear to dispute this finding. Indeed, Mullaney’s
declaration recites that all five works are the subject
of Plaintiffs’ allegations, but ultimately notes the
verification of four works; noting that “Mr. Davis’s
review of the audio recording confirmed the
performance of one of the compositions (‘Show Me
Love’) which is alleged in Plaintiffs’ Complaint to
have been performed”. (Mullaney Decl. ¶¶ 13-14, 1921). As such, while Plaintiffs’ allegations are
accepted as true, as to liability, however, the review
of Plaintiffs’ filings indicates that Defendants are
liable for the infringement of four copyrighted works.

5

437 (S.D.N.Y. 2010) (citing Shapiro,
Bernstein & Co., 316 F.2d at 307). Further,
proprietors may be held liable even if they
direct the DJ “…not to play protected works,
or [are] unaware that the songs performed
were copyrighted.” BMI v. 44th St. Rest.
Corp., 1995 WL 408399, at *4 (collecting
cases) (internal quotation marks and
citations omitted). Here, given the
Defendants’ right and ability to supervise
the infringing conduct, and the nexus
between the infringement and the financial
benefit undoubtedly received, Defendants
can be held vicariously liable. For the
aforementioned reasons, the Court finds that
Plaintiffs’
uncontroverted
evidence
substantiates the claim of copyright
infringement and clearly satisfies the
required elements.

copyright infringement, pursuant to 17
U.S.C. § 504(c); and the reimbursement by
the Defendants of the Plaintiffs’ cost,
including reasonable attorneys’ fees,
pursuant to 17 U.S.C. § 505. (Pl. Br. at 1).
1. Statutory Damages
In lieu of actual damages under the
Copyright Act, a plaintiff may receive an
award of statutory damages “in a sum of not
less than $750 or more than $30,000” per
infringement. 17 U.S.C. § 504(c)(1).
Furthermore, where a plaintiff demonstrates
that the infringement was committed
willfully, “the court in its discretion may
increase the award of statutory damages to
not more than $150,000” per work. 17
U.S.C. § 504(c)(2). An infringement can be
considered willful if “the defendant had
knowledge that its conduct represented
infringement
or
perhaps
recklessly
disregarded that possibility.” Hamil Am.,
Inc. v. GFI, 193 F.3d 92, 97 (2d Cir. 1999)
(citing Fitzgerald Publ’g. Co. v. Baylor
Pub’g. Co., 807 F.2d 1110, 1115 (2d Cir.
1986)).

RELIEF REQUESTED

A. Damages
Although a party’s default “is
deemed to constitute a concession of all well
pleaded allegations of liability,” such a
concession does not extend to the damages
inquiry. See Greyhound Exhibitgroup, Inc.
v. E.L.U.L. Realty Corp., 973 F2d 155, 158
(2d Cir.1992). In awarding damages, a court
must ensure that there is sufficient basis for
the damages specified in the default
judgment, and can make such a
determination based on a review of the
evidence, such as detailed affidavits or
documents, without need for an evidentiary
hearing. Fustok v. Conti Commodity Servs.,
Inc., 873 F.2d 38, 40 (2d Cir. 1989). In
terms of damages, Plaintiffs request:
injunctive relief to prevent the Defendants
from continuing their infringement; statutory
damages in the amount of $25,000.00, or
$5,000.00 for each of the five claims of

Courts have also “frequently
infer[ed] willfulness where a defendant
defaults.” Hounddog Prods., L.L.C. v.
Empire Film Grp., Inc., 826 F. Supp. 2d
619, 631 (S.D.N.Y. 2011); Nature’s Enters.,
Inc. v. Pearson, No. 08–Civ–8549, 2010
WL 447377, at *7 (S.D.N.Y. Feb. 9, 2010).
This inference is based on the assumption
that “an innocent party would presumably
have made an effort to defend itself.” Chloe
v. Zarafshan, No. 06–Civ–3140, 2009 WL
2956827, at *7 (S.D.N.Y. Sept. 15, 2009).
a. Calculating Damages and the
Willfulness Enhancement
District
courts
“enjoy
wide
discretion…in setting the amount of

6

blatant disregard for the copyrights at issue:
The refusal to obtain a license, despite
constant solicitations and warnings that
failure to execute a licensing agreement
would result in liability under the Copyright
Act, coupled with BMI’s investigative
efforts, established that music from the BMI
catalog was being performed within LRSH
long after initial contact was made with the
Defendants. (Mullaney Decl. ¶¶ 13,19).
Defendants’ disregard demonstrates an
attitude of blatant indifference and the Court
finds these acts to be willful. Thus, statutory
damages greater than the minimum are
warranted.

statutory damages.” Bryant v. Media Right
Prod. Inc., 603 F.3d 135, 143 (2d Cir. 2010)
(citations and quotation marks omitted). In
exercising this discretion in the context of
awarding statutory damages for the
infringing conduct, a court may consider:
(1) the infringer’s state of mind; (2)
the expenses saved, and profits
earned, by the infringer; (3) the
revenue lost by the copyright holder;
(4) the deterrent effect on the
infringer and third parties; (5) the
infringer’s cooperation in providing
evidence concerning the value of the
infringing material; and (6) the
conduct and attitude of the parties.

b. Damages Calculation

Id. at 144.

When a defendant has acted
willfully, “a statutory award should
incorporate not only a compensatory, but
also a punitive component to discourage
further wrongdoing by the defendants and
others.” Hounddog Prods., 826 F. Supp. 2d
at 631. In the context of infringement of
musical works, the damages total
purposefully exceeds the amount of unpaid
license fees. Courts have continually held
that this marked increase serves to put
infringers “on notice that it costs less to
obey the copyright laws than to violate
them.” Broadcast Music, Inc. v. Pamdh
Enters., Inc., No. 13–CV–2255, 2014 WL
2781846, at *3 (S.D.N.Y. June 19, 2014)
(citing Broadcast Music, Inc. v. R Bar of
Manhattan, Inc., 919 F. Supp. 656, 660
(S.D.N.Y. 1996) (internal quotation and
citation omitted).

The Plaintiffs are entitled to statutory
damages for the infringement of the five
musical works at issue. Plaintiffs’ evidence
substantiates
Defendants’
willful
misconduct and thus particular emphasis is
placed on “the conduct and attitude of the
parties” in the subsequent analysis. Bryant,
603 F.3d at 144. BMI has shown that it was
in constant and one-sided communication
with the Defendants from January 2011
through September 2014. (See Mullaney
Decl ¶¶ 3, 5–9; Ex. C, ECF No. 12–8). BMI
made numerous telephone calls, sent various
letters and furnished proof that the letters
were delivered and the phone calls were
received. (Ex. A, ECF No. 12–6; Ex. B, ECF
No. 12–7; Ex. C, ECF No. 12–8). The
Defendants, as proprietors of the
establishment, did not respond to any of
BMI’s correspondence during the three
years and, although BMI delineated the
procedure to acquire a license, apparently
made no efforts to obtain one. (See
Mullaney Decl. ¶ 12, ECF No. 12–5).

Courts have awarded statutory
damages that at least double the unpaid
licensing fees. See Pamdh Enters., Inc., No.
13–CV–2255, 2014 WL 2781846, at *8
(S.D.N.Y. June 19, 2014). See also
Realsongs, Universal Music Corp. v. 3A N.
Park Ave. Rest Corp., 749 F. Supp. 2d 81,

The evidence of Defendants’ conduct
over the three years shows a conscious and
7

87 (E.D.N.Y.2010) (awarding $3,000 for
each of the five claims of infringement,
reflecting approximately three times the
amount of unpaid license fees); Broadcast
Music, Inc. v. 120 Bay St. Corp., 09–CV–
5056, 2010 WL 1329078, at *2–3 (E.D.N.Y.
2010) (awarding $4,207.50 for each of seven
claims
of
infringement,
reflecting
“approximately three times the amount
plaintiffs would have received in licensing
fees if defendants had been properly
licensed”); Broadcast Music, Inc. v. N.
Lights, Inc., 555 F. Supp. 2d 328, 333
(N.D.N.Y. 2008) (awarding $4,000 for each
of ten claims of infringement, reflecting
approximately two times the unpaid
licensing fees for the relevant time period).

Court’s finding of willfulness, coupled with
well settled case law on the punitive quality
of damages exceeding the unpaid licensing
fees, the Court finds that an award of
$16,000 or $4,000 per infringement is
appropriate. This amount, which is
approximately four times the amount
Defendants would have paid in licensing
fees, serves to compensate all affected
copyright holders. Further, it protects the
rights of the publishers and composers
affiliated with BMI by punishing the
unlawfulness and discouraging future
infringement.

Defendants’ estimated unpaid license
fees from February 2011, when Plaintiffs
first contacted them, until October 2014,
when the complaint was entered, totals
$5,000. (Mullaney Decl. ¶ 27) (noting that
the fees were $1,087.50 for February 2011
to January 2012; $1,100 from February 2012
to January 2013; $1,137.50 for February
2013 to January 2014; $1,162.50 for
February 2014 to January 2015). The
plaintiffs request statutory damages in the
amount of $25,000, which represents an
award of $5,000 for each of the five claims
of copyright infringement, pursuant to 17
U.S.C. §502. (Pl. Br. at 1).

Plaintiffs seek an order permanently
enjoining
Defendants
from
further
infringement of Plaintiffs’ copyrighted
works. (Compl. ¶ 5). The Copyright Act
gives courts the discretion to grant
temporary or final injunctions “…on such
terms as it may deem reasonable and
necessary to prevent or restrain infringement
of a copyright.” 17 U.S.C § 502(a).
However, the Supreme Court in eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388
(2006), noted that this discretion should be
exercised in a manner that comports with
“…traditional principles of equity.” eBay
Inc., 547 U.S. at 394. The Court in eBay
then established that, before a court can
grant a permanent injunction, the moving
party must satisfy elements of a four-factor
test by showing:

B. Injunctive Relief

In cases of willful infringement,
courts in this Circuit typically award
statutory damages between three and five
times the cost of the licensing fees the
defendant would have paid. Broadcast
Music, Inc. v. Prana Hospitality, Inc., No.
15– Civ–1987, 2016 WL 280317 (S.D.N.Y.
Jan. 21, 2016) (citing five Second Circuit
cases that have awarded statutory damages
in copyright infringement cases of three to
five times the amount the defendants would
have paid in licensing fees). Here, given the

(1) that it has suffered an
irreparable injury; (2) that
remedies available at law,
such
as
monetary
damages, are inadequate
to compensate for that
injury;
(3)
that,
considering the balance

8

The same principle applies here
because any payment of past license fees
would be equivalent to a payment of a
royalty, instead of compensation for losses
suffered from infringement in the first place.
Further, in considering the balance of
hardships, it is evident that Plaintiffs’
burden of time and cost of litigating every
future violation outweighs the burdens on
the Defendants to obtain a license or to not
infringe altogether. As noted by the Second
Circuit, “[i]n the copyright realm…an
injunction should be granted if the denial
would amount to a forced license to use the
creative work of another.” Silverstein, 368
F.3d at 84 (citing Nat’l Football League,
1999 WL 760130 at *4).

of hardships between the
plaintiff and defendant, a
remedy in equity is
warranted; and (4) that
the public interest would
not be disserved by a
permanent injunction.
Id. at 391.
The four-factor test is a notable
departure from the previous standard that
allowed courts to presume irreparable harm
once copyright infringement had been
established, placing instead, a burden on the
moving party to present facts substantiating
the requested relief. Pamdh Enterprises,
Inc., 2014 WL 2781846, at *4 (S.D.N.Y.
June 19, 2014) (quoting Salinger v. Colting,
607 F.3d 68, 82 (2d Cir. 2010) (“A court
must not presume irreparable harm; rather,
‘plaintiffs must show that, on the facts of
their case, the failure to issue an injunction
would actually cause irreparable harm.’”)).

It is clear from Defendants failure to
respond to BMI’s communications over
three years, their failure to obtain a license
agreement to during his period, and the fact
that the establishment is still marketed as a
dance club, that Defendants have no
intention of following the law and will likely
continue to violate Plaintiffs’ copyrights
without an injunction. Defendants’ actions
have caused, and will continue to cause,
damage that cannot be adequately
compensated solely by a monetary award.
Here, an injunction would enjoin Defendants
from continually infringing rather than to
impose the hardship of “[r]equiring
Plaintiffs to commence litigation for each
future violation”. Buttnugget Publ’g v.
Radio Lake Placid, Inc., 807 F. Supp. 2d
100, 109 (N.D.N.Y. 2011). Lastly, the
permanent injunction would serve the public
interest by prohibiting the infringing
conduct in furtherance of copyright law.
Accordingly,
the
Court
respectfully
recommends that Plaintiffs’ request for an
injunction be granted, thereby preventing
Defendants from performing the songs in the
BMI catalog without a license pursuant to
17 U.S.C. § 502.

Applying these factors, in the context
of infringement of a musical work,
“[m]onetary damages awarded after the fact
do not provide an adequate remedy in a case
such as this where the actual loss caused by
the infringement cannot be measured
precisely.” Broad. Music, Inc. v. Bayside
Boys, Inc., No. 12–CV–03717, 2013 WL
5352599, at *7 (E.D.N.Y. Sept. 23, 2013).
Also, “the failure to issue a final injunction”
would “be tantamount to the creation of a
compulsory license” with “future damages
then becoming a sort of royalty…” as
opposed to compensation for the harm. Nat’l
Football League v. Primetime 24 Joint
Venture, No. 98 CIV. 3778, 1999 WL
760130, at *4 (S.D.N.Y. Sept. 27, 1999)
(citations omitted). See also Silverstein v.
Penguin Putnam, Inc., 368 F.3d 77, 84 (2d
Cir. 2004).

9

Declaration (“Ex. 2”), ECF No. 12–11).
Within this Circuit, flat-rate attorney’s fees
are often not awarded unless backed by
detailed
supporting
documents
of
contemporaneous time records specifying:
work done, relevant dates and time
expended for each individual working on the
litigation. Mack Fin. Servs. v. Poczatek, No.
10–CV–3799, 2011 WL 4628695, at *10
(E.D.N.Y. Aug. 30, 2011) (citation omitted).

C. Attorney’s Fees
Plaintiffs seek attorneys’ fees
under Section 505 of the Copyright Act,
which permits a court to mandate “the
recovery of full costs by or against any
party” and “…also award a reasonable
attorney’s fee to the prevailing party as a
part of the costs.” 17 U.S.C. §505. Although
costs and attorneys’ fees are regularly
awarded in copyright infringement cases, a
finding of infringement no longer guarantees
prevailing party’s attorney’s fees. Fogerty v.
Fantasy, Inc., 510 U.S. 517, 518, 520
(1994). Instead, in assessing the suitability
of attorneys’ fees, courts are urged to
evaluate factors such as, “frivolousness,
motivation, objective unreasonableness
(both in the factual and in the legal
components of the case) and the need in
particular circumstances to advance
considerations of compensation and
deterrence.” Blanch v. Koons, 485 F. Supp.
2d 516, 517 (citing Fogerty, 510 U.S. at 534
n.19)
(citation
omitted). Here, the
deterrence factor is most significant because
the infringement continued years after
BMI’s initial contact. Thus, Defendants
evidently need to be deterred from future
infringement and an award of attorneys’ fees
is connected with that goal.

Even if the Second Circuit standard
requiring documentation is satisfied, flatrate attorney’s fees are still subject to the
“considerable discretion” of district courts to
determine their reasonability. Arbor Hill
Concerned Citizens Neighborhood Ass’n. v.
Cnty. of Albany, 522 F.3d 182, 190 (2d Cir.
2008). This determination is reached by
applying the “presumptively reasonable fee”
standard, a derivative of the historical
lodestar method, and comparing it to the
flat-fee amount. Pamdh Enters., Inc., 2014
WL 2781846, at *6. See also City of
Burlington v. Dague, 505 U.S. 557, 562
(1992); Arbor Hill Concerned Citizens
Neighborhood Ass’n., 522 F.3d at 183, 189.
The presumptively reasonable fee is a
“…product of a reasonable hourly rate and
the reasonable number of hours required by
the case.” Millea v. Metro–North R.R. Co.,
658 F.3d 154, 166 (2d Cir. 2011).
2. Presumptively Reasonable
Fee: Reasonable Rate and
Hours Expended

1. Calculation of the
Attorney's Fees and Costs
Plaintiffs’ attorney seeks $7,500 in
attorney’s fees, pursuant to a flat-rate
agreement between Gibbons P.C. and the
Plaintiffs, which provides for payment of
fixed fees during different phases of the
litigation. (See Declaration of J. Brugh
Lower (“Lower Decl.”) ¶ 2, ECF No. 12–9;
Exhibit 1 to Lower Declaration (“Ex. 1”),
ECF No. 12–10; Exhibit 2 to Lower

The mere presence of an agreement
between private parties to pay a flat-fee is a
“strong indication of what said parties
believe is the ‘reasonable’ fee to be
awarded.” Crescent Publ’g Grp., Inc. v.
Playboy Enters., Inc., 246 F.3d 142, 151 (2d
Cir. 2001). Reasonability of hourly rates are
guided by the prevailing market rate “in the
community for similar services by lawyers

10

of reasonably comparable skill, experience
and reputation,” Blum v. Stenson, 465 U.S.
886, 895 n.11 (1984). The relevant
community generally encompasses the
“district in which the court sits.” Polk v.
New York State Dep’t of Corr. Servs., 722
F.2d 23, 25 (2d Cir.1983). “Although
attorney rates are generally evaluated in
comparison to those charged in the district
in which the court sits, courts in the Eastern
District of New York often use rates for
New York City attorneys awarded in the
Southern District of New York as a basis for
comparison”. Entral Grp. Int’l v. Sun Sports
Bar Inc., No. 05–CV–4836, 2007 WL
2891419, at *10 (E.D.N.Y. Sept. 28, 2007)
(citations omitted).

These hourly rates fall well within
the range of what courts in this District have
considered
reasonable
for
similarly
experienced attorneys and paralegals. See,
e.g., Union
of
Orthodox
Jewish
Congregations of Am. v. Royal Food
Distributors Liab. Co., 665 F. Supp. 2d 434,
437 (S.D.N.Y. 2009) (finding partner and
associate rates of $735 and $445,
respectively, reasonable); GAKM Res. LLC
v. Jaylyn Sales Inc., No. 08–Civ–6030, 2009
WL 2150891, at *8 (S.D.N.Y. July 20,
2009) (approving $650 and $600 hourly
rates for partners specializing in intellectual
property litigation and $195 hourly rate for a
paralegal); Pyatt v. Raymond, No. 10–CIV–
8764, 2012 WL 1668248, at *6 (S.D.N.Y.
May 10, 2012) (discussing cases that
approved rates ranging from $400 to $650
for partners in copyright and trademark
cases); Diplomatic Man, Inc. v. Nike, Inc.,
No. 08 CIV. 139, 2009 WL 935674, at *5–6
(S.D.N.Y. Apr. 7, 2009) (finding that New
York firm partners rates of $650 per hour for
and paralegal rates of $200 per hour were
reasonable); Lucky Brand Dungarees, Inc. v.
Ally Apparel Res., LLC, No. 05 CIV. 6757,
2009 WL 466136, at *6 (S.D.N.Y. Feb. 25,
2009) (finding rates of $235.00 per hour,
$220.00 per hour, and $205.00 per hour for
paralegal work reasonable); Entral Grp.
Int’l. LLC v. Sun Sports Bar Inc., No. 05–
CV–4836, 2007 WL 2891419, at *10
(E.D.N.Y. 2007) (finding hourly rates of
$560.00 for a partner in a copyright
infringement
action
reasonable).
Accordingly, the Court finds these hourly
rates reasonable.

Gibbons P.C. utilized the expertise
of both attorneys and paraprofessionals
during all phases of this litigation. (Lower
Decl. ¶ 6). Plaintiffs’ counsel, J. Brugh
Lower, included a detailed account of their
professional backgrounds, normal hourly
rates, and the individual time spent litigating
this case. (See Lower Decl. 2–4). Owen
McKeon is an attorney staffing this case.
(See Lower Decl. 2, 3). Mr. McKeon is
experienced in the field of copyright law and
formerly served as a Director in the
Intellectual Property Department at Gibbons
P.C. (See Lower Decl. ¶ 6(a)). His rate was
$600 per hour. (Lower Decl. ¶ 6(a)). J.
Brugh Lower, who bills at an hourly rate of
$385, is admitted to practice in two states
and a number of Federal courts. (See Lower
Decl. ¶ 6(b)). Martin Brech is a Managing
Clerk at Gibbons P.C. and has served in that
capacity for fifteen years. Mr. Brech’s rate is
$205 per hour. (Lower Decl. ¶ 6(c)). Fritz
Sammy is a Case Manager at Gibbons P.C.
and his rate is $200 per hour. (Lower Decl. ¶
6(d)). Ariel M. Franklin Ragguci is a
Knowledge Management Research Analyst
at Gibbons P.C. and hourly rate is $155 per
hour. (Lower Decl. ¶ 6(e), ECF No. 12–9).

3. Hours Expended by
Plaintiffs’ Counsel
The “hours expended” portion of the
presumptively reasonable fee analysis
requires courts to view “particular hours

11

expended by counsel with a view to the
value of the work product of the specific
expenditure to the client’s case.” Entral Grp.
Int’l. LLC v. Sun Sports Bar Inc., No. 05–
CV–4836 (CBA), 2007 WL 2891419, at *9
(E.D.N.Y. 2007) (citations omitted). Further,
District courts are urged to “exclude
excessive,
redundant
or
otherwise
unnecessary hours...” when evaluating
submitted time records. Quaratino v. Tiffany
& Co., 166 F.3d 422, 425 (2d Cir.1999)
(citations omitted). This further ensures that
the ultimate amount is in fact reasonable. Id.
at 425. “[A]ny attorney...who applies for
court-ordered
compensation
in
this
Circuit…must document the application
with
contemporaneous
time
records…specify[ing], for each attorney, the
date, the hours expended, and the nature of
the work done.” N.Y. State Ass’n for
Retarded Children, Inc. v. Carey, 711 F.2d
1136, 1148 (2d Cir. 1983).

4. Plaintiffs’ Counsel is
Entitled to Attorney’s Fees
Based on the preceding analysis, I
recommend that the Plaintiffs should be
awarded the flat-fee of $7,500. Had
Plaintiffs been billed, based on a collective
calculation of hourly rates, the amount
would have totaled $13,183.50. Applying
the presumptively reasonable fee standard
and comparing both costs, it is evident that
the hourly fee would have far exceeded the
flat-fee rate of $7,500. Therefore, the Court
finds these fees reasonable and the award of
attorney’s fees should be granted.

D. Costs
Plaintiffs’ attorney seeks $546.90 in
costs related to filing and service of the
Complaint. (Lower Decl. ¶¶ 3–8; Ex. 1, ECF
12–10;
Ex.
2,
ECF
12–
11). Plaintiffs’ attorney has submitted a
substantial and detailed accounting of costs
associated with this litigation. Such costs are
routinely accrued during the course of
litigation and are typically awarded by
courts. Pamdh Enters., Inc., 2014 WL
2781846, at *5–8; GAKM Res. LLC v.
Jaylyn Sales Inc., No. 08–Civ–6030, 2009
WL 2150891, at *10 (S.D.N.Y. July 20,
2009) (noting that filing fees, service fees,
and transportation expenses are “the types of
routine costs awarded to prevailing parties in
trademark and copyright infringement
actions”). See also LeBlanc–Sternberg v.
Fletcher, 143 F.3d 748, 763 (2d Cir.1998)
(quoting United States Football League v.
Nat’l Football League, 887 F.2d 408, 416
(2d Cir. 1989)) (stating that attorney’s fees
awards include reasonable out-of-pocket
expenses incurred by attorneys and
ordinarily charged to clients). Accordingly,
I recommend that Plaintiffs’ request for
costs in the amount of $546.90 be granted.

Plaintiffs’ attachment to the Lower
Declaration provides records stating the
date, description of services rendered, and
time spent. (Ex. 1, ECF No. 12–10). These
records indicate that: Mr. McKeon spent 1.5
hours on this matter; Mr. Lower spent 31.3
hours; Mr. Brech spent 0.5 hours; Mr.
Sammy spent 0.5 hours; and Ms. Ragucci
spent 0.2 hours, for a total of 34 hours
expended on the litigation of this case.
(Lower Decl. ¶ 4; Ex. 1, ECF No. 12–10).
Based on a thorough review of Plaintiffs
counsel’s submitted documents, which
details the breakdown of time expended by
each attorney and paralegal that worked on
the case, the Court finds no redundancy in
the time expended and consequently finds
these hours reasonable. (See Ex. 1, ECF No.
12–10).

12

CONCLUSION
Based on the foregoing, I respectfully
recommend that the Court grant Plaintiffs’
motion for a default judgment, award
Plaintiffs statutory damages in the amount of
$16,000, plus costs and attorney’s fees
totaling $8,046.90, and issue a permanent
injunction prohibiting Defendants from
further infringing the Plaintiffs’ copyrights.
Plaintiffs are hereby directed to serve copies
of this Report and Recommendation upon
Defendants by next-day mail by February
29, 2016, at each of their last known
addresses, and to promptly file proof of
service with the Clerk of the Court. Any
objections to the recommendations made in
this Report must be filed with the Clerk of
the Court and the Honorable Frederic Block
within fourteen (14) days of receipt hereof.
Failure to file timely objections waives the
right to appeal the District Court’s Order.
See 28 U.S.C. § 636(b)(1); FED. R. CIV. P.
72; Small v. Sec’y of Health & Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989).
SO ORDERED.

Ramon E. Reyes, Jr.
RAMON E. REYES, JR.
United States Magistrate Judge

Dated: February 26, 2016
Brooklyn, NY

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