Broadcast Music, Inc. et al v. Wexford INR LLC et al

Filing 40

DECISION AND ORDER granting Pltfs' 32 Motion for Summary Judgment. Defts Roche and Wexford, and all persons acting on their permission or authority, are permanently enjoined from infringing the copyrighted musical compositions licensed by Plt f Broadcast Music, Inc.. Clerk of Court shall enter judgment in favor of Pltfs and against Defts Roche and Wexford in the amount of $24,000.00. Pltfs' request for attys' fees is denied without prejudice to refiling within 30 days of the date of this Decision and Order. Signed by Judge Glenn T. Suddaby on 9/15/14. [Served by mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BROAD. MUSIC, INC.; UNIV.-SONGS OF
POLYGRAM INT’L, INC.; ADULT MUSIC;
SCREEN GEMS-EMI MUSIC, INC.;
WARNER-TAMERLANE PUBL’G CORP.;
ELEKSYLUM MUSIC INC.; NO SURRENDER
MUSIC; WELSH WITCH MUSIC; EMI VIRGIN
SONGS, INC.; CORAL REEFER MUSIC,
1:12-CV-1253 (GTS/RFT)
Plaintiff,
v.
WEXFORD INR LLC d/b/a THE IRISH TIMES
PUB & REST.; and NIALL ROCHE, individually,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

HARRIS BEACH PLLC
Counsel for Plaintiffs
99 Garnsey Road
Pittsford, New York 14534

NEAL L. SLIFKIN, ESQ.

THE MORRISON LAW OFFICES, PC
Counsel for Defendants
87 Walker Street, 2nd Floor
New York, New York 10013

LAWRENCE MORRISON, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this copyright infringement action filed by the ten abovecaptioned entities (“Plaintiffs”) against Wexford INR LLC and Niall Roche (“Defendants”)
pursuant to 17 U.S.C. § 101 et seq., is Plaintiffs’ motion for summary judgment. (Dkt. No. 32.)
For the reasons set forth below, Plaintiffs’ motion is granted.

I.

RELEVANT BACKGROUND
A.

Plaintiffs’ Claims

Generally, liberally construed, Plaintiffs’ Complaint alleges that, on or about June 2,
2012, at The Irish Times Pub & Restaurant in Saratoga Springs, New York, Defendants violated
the following rights in the following manner: (1) the rights of Plaintiff Universal-Songs of
Polygram International, Inc., under 17 U.S.C. § 101 et seq., by publically performing, without
authorization, the musical composition Brown Eyed Girl, written by Van Morrison; (2) the rights
of Plaintiff Adult Music under 17 U.S.C. § 101 et seq., by publically performing, without
authorization, the musical composition I Want You to Want Me, written by Rick Nielsen; (3) the
rights of Plaintiff Eleksylum Music, Inc., under 17 U.S.C. § 101 et seq., by publically
performing, without authorization, the musical composition Keep Your Hands to Yourself,
written by Dan Baird; (4) the rights of Plaintiff Welsh Witch Music, under 17 U.S.C. § 101 et
seq., by publically performing, without authorization, the musical composition Landslide,
written by Stevie Nicks; (5) the rights of Plaintiff EMI Longitude Music under 17 U.S.C. § 101
et seq., by publically performing, without authorization, the musical composition Louie Louie,
written by Richard Berry; and (6) the rights of Plaintiff Coral Reefer Music under 17 U.S.C. §
101 et seq., by publically performing, without authorization, the musical composition
Margaritaville, written by James William Buffett a/k/a Jimmy Buffett. (See generally Dkt. No. 1
[Plfs.’ Compl.].)
Familiarity with the factual allegations supporting these claims is assumed in this
Decision and Order, which is intended primarily for the review of the parties. (Id.)

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B.

Undisputed Material Facts

Generally, the following facts were asserted and supported by Plaintiffs in their Local
Rule 7.1 Statement of Undisputed Material Facts, and either expressly admitted or denied
without an accurate supporting record citation by Defendants in their Local Rule 7.1 Response.
(Compare Dkt. No. 32, Attach. 1 [Plfs.’ Rule 7.1 Statement] with Dkt. No. 37 [Defs.’ Opp’n
Papers].)
1.

Plaintiff Broadcast Music, Inc. (“BMI”) is a not-for-profit performing rights

society that licenses the right to publicly perform copyrighted musical compositions and works
on behalf of the copyright owners of those works. (Dkt. No. 33, at 1-2 [Lloyd Decl. at ¶¶ 3–4].)
2.

BMI acquires non-exclusive public performance rights by agreement with

copyright owners, including publishing companies and independent composers. (Dkt. No. 33, at
1-2 [Lloyd Decl. at ¶ 4].)
3.

The other Plaintiffs in this suit are the copyright owners of the six musical

compositions that are the subject of this lawsuit. (Dkt. No. 33, at 2 [Lloyd Decl. at ¶ 5].)
4.

The other Plaintiffs have granted BMI the right to maintain actions for

infringement of the public performance rights in the musical compositions that are the subject of
this lawsuit and to seek damages for such infringement. (Dkt. No. 33, at 2 [Lloyd Decl. ¶¶ 5-8].)
5.

Defendant Wexford INR, LLC (“Wexford INR”) owns 100% of the Irish Times

Pub & Restaurant located at 14 Phila Street, Saratoga Springs, NY 12866 (the “Irish Times”).
(Dkt. No. 32, Attach. 2, at 107 [Plfs.’ Ex. E at No. 3].)
6.

Defendant Niall Roche (“Mr. Roche”) owns 100% of Wexford INR, and is the

general manager of the Irish Times. (Dkt. No. 32, Attach. 2, at 106-07 [Plfs.’ Ex. E at Nos. 1-4].)

3

7.

Wexford INR and Mr. Roche (“Defendants”) thus own and operate

the Irish Times; and Mr. Roche has received approximately three hundred forty-eight thousand
dollars ($348,000.00) in gross revenue from the Irish Times from 2009 to 2012. (Dkt. No. 32,
Attach. 2, at 106-07 [Plfs.’ Ex. E at Nos. 1-4]; Dkt. No. 37, at 1 [Defs.’ Opp’n Papers, ¶¶ 1, 2].)
8.

The Irish Times features performances of live and recorded music. (Dkt.

No. 34, at 1-2, 3 [Stevens Decl. at ¶¶ 4, 11-12].)
9.

Between February 2010 and June 2012, BMI mailed multiple letters to

Defendants informing them of the need to obtain permission for public performances of
copyrighted music, and offered to enter into a license agreement with Defendants. (Dkt. No. 34,
at 2 [Stevens Decl. at ¶ 6].)
10.

Defendants did not enter into a license agreement with BMI, and did not have a

license to perform any of the six songs identified in Exhibit A to the Complaint. (Dkt. No. 34, at
3 [Stevens Decl. at ¶ 10].)
11.

On January 11, 2011, BMI instructed Defendants to cease public performances of

music licensed by BMI. (Dkt. No. 34, at 2 [Stevens Decl. ¶ 7].)
12.

Irish Times continued to feature public performances of BMI-licensed music after

a BMI investigator documented the performances of songs owned by Plaintiff on June 2, 2012.
(Dkt. No. 34, at 3 [Stevens Decl. ¶ 11].)
13.

BMI’s investigator generated an audio recording and written report of the songs

played at the Irish Times on June 2, 2012. (Dkt. No. 34, at 3 [Stevens Decl. ¶ 11].)
14.

On June 2, 2012, at least “Brown Eyed Girl,” “I Want You To Want Me,” “Keep

Your Hands To Yourself,” “Louie Louie,” “Margaritaville,” and “Landslide” were performed at

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the Irish Times. (Dkt. No. 34, at 3 [Stevens Decl. ¶ ¶ 11, 12].)
15.

Each of these compositions is registered with the U.S. Copyright Office to one of

the named Plaintiffs. (Dkt. No. 33, at 2-3 [Lloyd Decl.¶¶ 5, 7-9]; Dkt. No. 33, at 17-198 [Plfs.’
Ex. B].)
16.

BMI has been granted by the other Plaintiffs the right to maintain actions for

infringement of the public performance rights in the musical compositions that are the subject of
this lawsuit and to seek damages for such infringement. (Dkt. No. 33, at 2 [Lloyd Decl.¶ 6].)
17.

Plaintiffs served their First Set of Interrogatories on Defendants, their First

Request for Production of Documents on Defendants, and their First Requests for Admissions to
Defendants on Defendants by First Class Mail, postage prepaid on February 7, 2013. (Dkt. No.
32, Attach. 2, at 1-2 [Slifkin Decl. ¶¶ 2-5].)
18.

Plaintiffs’ First Requests for Admissions states that a response was required

within thirty (30) days. (Dkt. No. 32, Attach. 2, at 2 [Slifkin Decl. ¶ 6].)
19.

No response from Defendants to Plaintiffs’ First Requests for Admissions had

been received by Plaintiffs as of November 8, 2013. (Dkt. No. 32, Attach. 2, at 2 [Slifkin Decl. ¶
8].)
Familiarity with the remaining undisputed material facts of this action, as well as the
disputed material facts, as set forth in the parties’ Rule 7.1 Statement and Response thereto, is
assumed in this Decision and Order, which (again) is intended primarily for the review of the
parties.

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C.

Parties’ Briefing on Plaintiffs’ Motion

Generally, in support of their motion for summary judgment, Plaintiffs assert the
following three arguments: (1) Plaintiffs have established a prima facie case of copyright
infringement in a musical composition under 17 U.S.C. § 101 et seq, and Defendants have failed
to create a genuine issue of material fact denying (a) the originality and authorship of the
compositions involved, (b) compliance with all formalities required to secure a copyright under
Title 17 of the United States Code, (c) that Plaintiffs are the proprietors of the copyrights of the
subject compositions, (d) that Defendants performed the compositions publically for profit, and
(e) that Plaintiffs or their representatives did not grant Defendants permission for such
performances; (2) Defendants are vicariously and/or contributorily liable for the acts of
infringement committed at the Irish Times; and (3) Plaintiffs are entitled to the relief sought (i.e.,
injunctive relief, statutory damages, and attorneys’ fees and costs). (See generally Dkt. No. 32,
Attach. 3 [Plfs.’ Memo. of Law].)
Generally, in response to Plaintiffs’ motion for summary judgment, Defendants assert the
following two arguments: (1) Defendants have created a genuine issue of material fact as to
whether or not their conduct was intentional; and (2) because Defendants’ conduct was not
intentional, and because Defendants “offered to settle this matter,” Plaintiffs’ request for
statutory damages in the amount of four thousand dollars ($4,000.00) per infringement is not
warranted, and, at most, damages in the amount of seven hundred fifty dollars ($750.00) per
infringement are warranted. (See generally Dkt. No. 37, at 1-2 [Defs.’ Opp’n Papers].)
Generally, in reply to Defendants’ response, Plaintiffs assert the following two
arguments: (1) Defendants’ argument that their infringement was not intentional does not

6

preclude summary judgment in favor of Plaintiffs because willfulness is not an element of a
claim for copyright infringement; and (2) Defendants do not dispute that Plaintiffs are entitled to
the relief sought, and Defendants’ dispute over an appropriate award of damages does not
preclude the Court from exercising its discretion to award damages within the statutory limits.
(See generally Dkt. No. 39 [Plfs.’ Reply Memo. of Law].)
II.

RELEVANT LEGAL STANDARDS
A.

Legal Standard Governing Motions for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). In determining whether a genuine issue of material
fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the
moving party] bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the
absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986).
However, when the moving party has met this initial responsibility, the nonmoving party must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a),(c),(e).
A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury
could return a verdict for the novmoving party." Anderson, 477 U.S. at 248. As a result,
"[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine
issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As

7

the Supreme Court has famously explained, "[The nonmoving party] must do more than simply
show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
As for the materiality requirement, a dispute of fact is "material" if it "might affect the
outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that
are irrelevant or unnecessary will not be counted." Id.
Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving
party willfully fails to adequately respond to a motion for summary judgment, a district court has
no duty to perform an independent review of the record to find proof of a factual dispute–even if
that nonmoving party is proceeding pro se.1 (This is because the Court extends special solicitude
to the pro se litigant largely by ensuring that he or she has received notice of the consequences of
failing to properly respond to the motion for summary judgment.)2 As has often been recognized
by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's
procedural rules.3
Of course, when a non-movant has failed to respond to a movant’s motion for summary
judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, the Court must (1) determine what material facts, if any, are disputed in the record
presented on the movant’s motion, and (2) assure itself that, based on those undisputed material
1

Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.)

(citing cases).
2

Cusamano, 604 F. Supp.2d at 426 & n.3 (citing cases).

3

Cusamano, 604 F. Supp.2d at 426-27 & n.4 (citing cases).
8

facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the movant's motion does
is lighten the movant's burden on its motion.
For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set
forth in a moving party's statement to be admitted, to the extent that those facts are supported by
evidence in the record, where the nonmoving party has willfully failed to properly respond to
that statement4–even where the nonmoving party was proceeding pro se.5
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law (submitted in support of its
motion for summary judgment), the non-movant is deemed to have "consented" to the legal
arguments contained in that memorandum of law under Local Rule 7.1(b)(3).6 Stated another
way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant’s
burden with regard to that argument is lightened, such that, in order to succeed on that argument,

4

Among other things, Local Rule 7.1(a)(3) requires that the nonmoving party file a
response to the moving party's Statement of Material Facts, which admits or denies each of the
moving party's factual assertions in matching numbered paragraphs, and supports any denials
with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
5

Cusamano, 604 F. Supp.2d at 427 & n.6 (citing cases).

6

See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
9

the movant need only show that the argument possess facial merit, which has appropriately been
characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed
motion is unopposed and the Court determines that the moving party has met its burden to
demonstrate entitlement to the relief requested therein . . . .”); Rusyniak v. Gensini, 07-CV-0279,
2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); EsteGreen v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009)
(Suddaby, J.) (collecting cases).
B.

Legal Standard Governing Plaintiffs’ Claims for Copyright Infringement

Because Defendants have failed to challenge the legal standard cited by Plaintiffs as
governing their claims for copyright infringement, the Court will only briefly recite that standard
in this Decision and Order, which (again) is intended primarily for the review of the parties.
(See generally Dkt. No. 32, Attach. 3 [Plfs.’ Memo. of Law]; Dkt. No. 37 [Defs.’ Opp’n Papers];
Dkt. No. 39 [Plfs.’ Reply Memo. of Law].)
“Copyright infringement is established when the owner of a valid copyright demonstrates
unauthorized copying.” Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997); see to 17 U.S.C. §
501(a). In cases dealing with musical works, “copying” means the right “to perform the
copyrighted work publicly.” 17 U.S.C. § 106(4). Thus, in order to establish a prima facie case of
copyright infringement in a musical work, a plaintiff must prove the following:
(1) the originality and authorship of the compositions involved; (2)
compliance with all formalities required to secure a copyright under Title
17 of the United States Code; (3) that plaintiffs are the proprietors of the
copyrights of the compositions involved in this action; (4) that the musical
composition were publicly performed for profit (by the defendants); and
(5) that the defendants had not received permission from any of the
plaintiffs or their representatives for such performance.

10

Broad. Music, Inc. v. DFK Entm’t, LLC, 10-CV-1393, 2012 WL 893470, at *2 (N.D.N.Y.
Mar. 15, 2012) (Sharpe, J.) (citing Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 912 [D.
Conn. 1980]).
C.

Legal Standards Governing Plaintiffs’ Requested Forms of Relief

Defendants have also failed to challenge the legal standards cited by Plaintiffs as
governing their requested forms of relief: (1) joint and several liability; (2) permanent injunctive
relief; (3) statutory damages; and (4) reasonable attorneys’ fees. As a result, the Court will only
briefly recite those legal standards where necessary in Part III.B. of this Decision and Order,
which (again) is intended primarily for the review of the parties. (See generally Dkt. No. 32,
Attach. 3 [Plfs.’ Memo. of Law]; Dkt. No. 37 [Defs.’ Opp’n Papers]; Dkt. No. 39 [Plfs.’ Reply
Memo. of Law].)
III.

ANALYSIS
A.

Whether Plaintiffs’ Motion for Summary Judgment on Their Claims for
Copyright Infringement Should Be Granted

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiffs’ memoranda of law. (Dkt. No. 32, Attach. 3 [Plfs.’ Memo. of
Law]; Dkt. No. 39 [Plfs.’ Reply Memo. of Law].) The Court would add only three points.
First, in their Rule 7.1 Response, Defendants have willfully failed to deny the facts
asserted in Plaintiffs’ Rule 7.1 Statement of Material Facts. The Court uses the word “willfully”
because, at the time they filed their opposition to Plaintiffs’ motion on December 9, 2013,
Defendants were represented by counsel, and actually had received an extension of the deadline
for filing an opposition. (See, e.g., Dkt. No. 35.) Indeed, at the time they filed their opposition
papers, Defendants had been represented by counsel for nearly a year. (Text Minute Entry dated
11

Jan. 2, 2013; Dkt. No. 25 [Am. Answer filed Feb. 23, 2013].)7 Despite these facts, Defendants
made the following decisions in their opposition papers: (1) they altogether omitted responses to
Paragraphs 1-19 of Plaintiffs’ Rule 7.1 Statement; and (2) they actually supported Paragraph 7 of
Plaintiffs’ Rule 7.1 Statement by stating in Paragraph 2 of Niall Roche’s affidavit that the facts
demonstrate that Defendants have “a modest business making $348,000 in gross revenue [from]
the Irish times [sic] for a 3-year period.” (See generally Dkt. No. 37 [Defs.’ Opp’n Papers].)
Each of the facts asserted in Plaintiffs’ Rule 7.1 Statements are supported by accurate record
citations. As a result, each of the facts asserted in Plaintiffs’ Rule 7.1 Statement is deemed
admitted by Defendants, pursuant to Local Rule 7.1(a)(3). See, supra, Part II.A. of this Decision
and Order.8
Second, not only were the facts asserted in Plaintiffs’ Rule 7.1 Statement not sufficiently
opposed by Defendants, the legal arguments in Plaintiffs’ memorandum of law were not
specifically opposed by Defendants, thus lightening Plaintiffs’ burden with regard to those legal
arguments, which Plaintiffs have met. See, supra, Part II.A of this Decision and Order. The
Court notes that Plaintiffs submitted affidavits, certified infringement reports, and copyright
registrations sufficient to establish their prima facie case for copyright infringement. (See

7

In addition, the Court notes that, on September 7, 2012, the Clerk's Office
supplied Defendants with a copy of the Northern District's Pro Se Handbook, which contains a
notice of the consequences of failing to properly oppose a motion for summary judgment,
because Defendants were proceeding pro se at that time. (Docket Entry for Sept. 7, 2012.) See
also United States District Court for the Northern District of New York Pro Se Handbook, at 4142, http://www.nynd.uscourts.gov/documents/ProSeHandbook2008.pdf.
8

The Court notes that it is not the duty of a congested district court to sua sponte
scour some 384 pages of record evidence for a dispute of material fact. (Dkt. Nos. 32, 33, 34,
37.) See Stephenson Equip. v. ATS Specialized, Inc., 10-CV-1517, 2013 WL 4508444, at *8 &
n.12 (N.D.N.Y. Aug. 23, 2013) (Suddaby, J.).
12

generally Dkt. Nos. 32, 33, 34.) See also 17 U.S.C. § 410(c) (stating that in a judicial
proceeding, a copyright registration “shall constitute prima facie evidence of the validity of the
copyright and of the facts stated in the certificate”); DFK Entm’t, LLC, 2012 WL 893470, at *2
(holding certified infringement reports, affidavits, and copyright registrations for the musical
works sufficient to grant summary judgment in favor of plaintiff on its copyright infringement
claim).
Third, Defendants’ assertion of “innocent” infringement is immaterial for purposes of
rebutting Plaintiffs’ prima facie case. Under the Copyright Act, intent or knowledge is not an
element of infringement. Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1113 (2d Cir.
1986). Rather, innocence is significant to a district court only in determining an award for
statutory damages. Fitzgerald Pub. Co., 807 F.2d at 1113; see also, infra, Part III.B. of this
Decision and Order. What is important is that Defendants failed to deny the unauthorized use of
six of Plaintiffs’ copyrighted musical compositions or otherwise rebut Plaintiffs’ prima facie
case for copyright infringement. See, e.g., Fitzgerald Pub. Co., 807 F.2d at 1114 (finding that
defendant admitting to use of plaintiff’s copyrighted work alone made defendant liable for
copyright infringement absent a showing of authorization). See also, supra, Part II.A of this
Decision and Order.
For all of these reasons, Plaintiffs’ motion for summary judgment as to their claims for
copyright infringement is granted.

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B.

Whether Plaintiffs Are Entitled to Summary Judgment as to the Relief
Requested

As indicated in Part I.C. of this Decision and Order, Plaintiffs argue that Defendants are
vicariously and/or contributorily liable for the copyright infringement committed at the Irish
Times and should therefore be ordered to pay statutory damages for each of the claims for
infringement, as well as reasonable attorneys’ fees. Plaintiffs additionally request the Court order
permanent injunctive relief. Defendants have not disputed that Plaintiffs are entitled to the relief
sought, but rather respond that their infringement was not intentional, that they have offered to
settle the case, and that the Court should therefore award minimal damages. Court addresses
each of these arguments in turn.
1.

Whether Defendants Are Jointly and Severally Liable for
Infringement

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiffs’ memoranda of law. (Dkt. No. 32, Attach. 3 [Plfs.’ Memo. of
Law]; Dkt. No. 39 [Plfs.’ Reply Memo. of Law].) The Court would add only the following
analysis.
Where direct liability for copyright infringement is inapplicable, a defendant may still be
held responsible either as a vicarious or contributory infringer. See Screen Gems-Columbia
Music, Inc. F. Metlis & Lebow Corp., 453 F.3d 552, 554 (2d Cir. 1972) (“Copyright
infringement is in the nature of a tort, for which all who participate in the infringement are
jointly and severally liable.”). An individual may be held liable as a “contributory infringer” if
the individual, “with knowledge of the infringing activity, induces, causes or materially
contributes to the infringing conduct of another.” Broad. Music, Inc. v. DFK Entm’t, LLC, 10-

14

CV-1393, 2012 WL 893470, at *3 (N.D.N.Y. Mar. 15, 2012) (Sharpe, C.J.) (citing Arista
Records, LLC v. Doe 3, 604 F.3d 110, 117 [2d Cir. 2010]). In other words, “willful blindness is
knowledge” under copyright law. In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir.
2003); see also DFK Entm’t, LLC., 10-CV-1393, 2012 WL 893470, at *3 (stating that a person
who knows or has “reason to know of the direct infringement,” and “engaged in ‘personal
conduct that encourages or assists the infringement,’ “will be liable for contributory
infringement”) (citing Arista Records, LLC., 604 F.3d at 117). In contrast, an individual may be
held liable as a vicarious infringer even without proof of knowledge. Gershwin Pub. Corp. v.
Columbia Artists Mgmt., In., 443 F.2d 1159, 1162 (2d Cir. 1971). Instead, “an individual is
jointly and severally liable as a vicarious infringer ‘if he has the right and ability to supervise the
infringing activity and also has a direct financial interest in such activities.’” DKF Entm’t, LLC,
2012 WL 893470, at *3 (citing Gershwin Pub. Corp., 443 F.2d at 1162).
Here, the Court finds that Defendant Wexford is a contributory infringer. It is undisputed
that Defendant Wexford owns 100% of the Irish Times, and that it also profited from and had the
right to control the pub’s activities. (Dkt. No. 32, Attach. 2, at 106-07 [Plfs.’ Ex. E at Nos. 1-4].)
Such facts are enough to find Defendant Wexford jointly and severally liable for the
infringement of the musical compositions. See DFK Entm’t, 2012 WL 893470, at *3 (“[I]t is
undisputed that [defendant] is liable as a contributory infringer since it not only owned and
operated [the club], but it also profited from, and had the right to control, the club’s activities.”).
In addition, the Court finds that, at a minimum, Defendant Roche is a vicarious infringer.
It is undisputed that Defendant Roche owns 100% of Wexford INR, is the general manager of
the Irish Times, and received approximately three hundred forty-eighth thousand dollars

15

($348,000.00) in gross revenue from the Irish Times from 2009 to 2012. (Dkt. No. 32, Attach. 2,
at 106-07 [Plfs.’ Ex. E at Nos. 1-4].) Such facts are enough to find Defendant Roche jointly and
severally liable for the copyright infringement committed at the Irish Times. See DFK Entm’t,
2012 WL 893470, at *3 (finding individual liable as a vicarious infringer where record showed
defendant was sole member and owner of LLC, which in turn owned club, at which defendant
was the general manager who had right and ability to supervise infringing activity).
For all of these reasons, the Court finds Defendants jointly and severally liable for the
infringement of Plaintiffs’ musical compositions.
2.

Whether Plaintiffs Are Entitled to a Permanent Injunction

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiffs’ memoranda of law. (Dkt. No. 32, Attach. 3 [Plfs.’ Memo. of
Law]; Dkt. No. 39 [Plfs.’ Reply Memo. of Law].) The Court would add only the following
analysis.
Under the Copyright Act, a court may grant a permanent injunction “on such terms as it
may deem reasonable to prevent or restrain” further copyright infringement. 17 U.S.C. § 502(a).
“Injunctive relief is warranted where a copyright owner establishes liability and a threat of
continuing violations.” Broad. Music, Inc. v. N. Lights, Inc., 555 F. Supp. 2d 328, 332 (N.D.N.Y.
2008) (Sharpe, J.) (citing Warner Bros. Entm’t, Inc. v. Carsagno, 06-CV-2676, 2007 WL
1655666, at *4 [E.D.N.Y. June 4, 2007]). A showing of continued infringement in the past and a
likelihood of infringement in the future may warrant the issuing of a permanent injunction. See
N. Lights, Inc,, 555 F. Supp. 2d at 332 (finding that a permanent injunction was justified because
plaintiffs’ complaint and affidavits established that defendant failed to desist in infringing

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plaintiffs’ copyright despite repeated notice); Broad. Music, Inc. v. Haibo, Inc., 10-CV-0240,
2012 WL 843424, at *5 (W.D.N.Y. Mar. 12, 2012) (granting plaintiffs a permanent injunction
against unauthorized public performances of any copyrighted compositions licensed through
plaintiffs where plaintiffs established defendants willfully disregarded any attempt by plaintiffs
to enter into a licensing agreement or otherwise comply with copyright law).
This Court has required a plaintiff to establish four elements in order to obtain a
permanent injunction in a copyright infringement case:
(1) that is 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 that balance of hardship 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.
Elec. Creations Corp. v. Gigahertz, Inc., 12-CV-1423, 2013 WL 3229125, at *4 (N.D.N.Y. June
25, 2013) (Suddaby, J.) (citing eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 [2006]).
Here, Plaintiffs have established the first two elements (i.e., irreparable harm and an
inadequate remedy at law). Defendants infringed upon Plaintiffs’ musical compositions on
numerous instances by publically performing the works at the Irish Times without a license.
(Dkt. No. 34, at 3 [Stevens Decl. ¶ 11].) Defendants did so even after they had notice that their
conduct constituted copyright infringement. (Dkt. No. 34, at 2 [Stevens Decl. at ¶ 6].) This
supports the inference that, without a permanent injunction, Defendants will continue their
illegal conduct. In addition, generally, monetary damages awarded “after the fact” do not
provide an adequate remedy where, as here, the status of Plaintiffs’ copyright has been harmed
or suffered loss in value. See Music, Inc. v. Metro Lounge & Café LLC, 10-CV-1149, 2013 WL
286361, at *7 (N.D.N.Y. Jan. 24, 2013) (Mordue, J.).

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Moreover, Plaintiffs have established the third element (i.e., a balance of hardships
weighing in plaintiffs’ favor). Generally, defendants do not suffer hardship when required to
comply with the law and obtain a valid license to plaintiffs’ copyrighted musical compositions.
On the other hand, plaintiffs do suffer hardship when deprived of their legal rights. Here, as
stated above, Defendants failed to cease their infringing conduct despite having had notice that
their conduct constituted copyright infringement, which supports an inference that their conduct
is likely to continue.
Finally, Plaintiffs have established the fourth element (i.e., that the public interest would
be served by a permanent injunction). Specifically, the Court finds that it is in the public’s
interest to grant this permanent injunction to ensure future copyright holders are protected from
infringers, and to inform the public of the importance of copyrights in musical composition.
For all of these reasons, Plaintiffs’ request for a permanent injunction is granted.
3.

Whether Plaintiffs Are Entitled to the Statutory Damages Requested

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiffs’ memoranda of law. (Dkt. No. 32, Attach. 3 [Plfs.’ Memo. of
Law]; Dkt. No. 39 [Plfs.’ Reply Memo. of Law].) The Court would add only the following
analysis.
Pursuant to 17 U.S.C. § 504(c), a plaintiff in an action for copyright infringement shall be
entitled to statutory damages of “not less than $750 or more than $30,000” for “all infringements
involved in the action, with respect to any one work, as the court considers just.” 17 U.S.C. §
504(c)(1). Bryant v. Media Right Prods., Inc., 603 F.3d 135, 143 (2d Cir. 2010) (“District courts
enjoy wide discretion in setting the amount of statutory damages.”). If a court finds that a

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defendant committed the infringement “willfully,” it may increase the statutory damages award
up to an amount of a hundred and fifty thousand dollars ($150,000.00) per work. 17 U.S.C. §
504(c)(2); see DFK Entm’t, 2012 WL 893470, at *4 (stating that “[d]amages may be as low as
$200 per infringement if such infringement was ‘innocent,’” but where an infringement was
“willful,” damages may be as high as $150,000.00 per infringement). “To prove ‘willfulness’
under the Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the
infringing activity, or (2) that the defendant’s actions were the result of ‘reckless disregard’ for,
or ‘willful blindness’ to, the copyright holder’s rights.” Elec. Creations Corp., 2013 WL
3229125, at *6. On the other hand, a defendant asserting innocence must show that it “was not
aware and had no reason to believe that its acts constituted an infringement.” D.C. Comics, Inc.
v. Mini Gift Shop, 912 F.2d 29, 35 (2d Cir. 1990).
Further, “statutory damages for copyright infringement are available without proof of
plaintiff’s actual damages or proof of any damages at all.” Elec. Creations Corp., 2013 WL
3229125, at *6 (citing All-Star Mktg. Grp. v. Media Brands Co., 775 F. Supp.2d 613, 626
[S.D.N.Y. 2011]). Rather, in determining a proper statutory award, courts generally consider the
following factors:
(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 proving evidence concerning the value of the infringing
material; and (6) the conduct and attitude of the parties.
Bryant, 603 F.3d at 144; N. Lights, Inc., 555 F. Supp.2d at 332. Moreover, statutory damages for
copyright infringement should “significantly exceed the amount of unpaid license fees” in order
to place “infringers on notice that it costs less to obey the copyright laws than to violate” those

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same laws. N. Lights, Inc., 555 F. Supp.2d at 332. Consequently, district courts often impose
statutory damages in an amount more than double unpaid licensing fees upon finding the
infringement was not innocent. N. Lights, Inc., 555 F. Supp.2d at 332, see also, e.g., Broad.
Music, Inc. v. Melody Fair Enter., Inc., 89-CV-0070, 1990 WL 284743 (W.D.N.Y. July 31,
1990) (awarding statutory damages four times the amount of unpaid licensing fees).
Here, the Court finds that Defendants willfully infringed Plaintiffs’ copyrights. The
record indicates that Plaintiffs mailed more than thirty (30) letters to Defendants advising that
Defendants needed a license to perform the musical compositions for which Plaintiffs hold the
rights. (Dkt. No. 34, at 2, 3 [Stevens Decl. ¶¶ 5, 6, 12, 13, 14, 15].) Further, Plaintiffs placed
more than fifty (50) phone calls to Defendants, and personally spoke to Defendant Roche on
fifteen (15) of those occasions. (Dkt. No. 34, at 3 [Stevens Decl. ¶ 9].) Despite Plaintiffs’
warnings and attempted licensing negotiations, Defendants continued to perform such musical
compositions without Plaintiffs’ permission. (Dkt. No. 34, at 3 [Stevens Decl. ¶¶ 10, 11].) The
Court is not prohibited from awarding statutory damages to Plaintiffs when, at best, Defendants
recklessly disregarded Plaintiffs’ rights under the Copyright Act. Bryant, 603 F.3d at 143 (stating
the alleged infringer has the burden of proving innocence while the copyright holder has the
burden of proving willfulness).
Moreover, the Court finds that Plaintiffs’ requested award of four thousand dollars
($4,000.00) per infringement is fair and reasonable. As discussed above, the uncontroverted
evidence establishes that Defendants knew that the public performance of Plaintiffs’ musical
compositions constituted infringement and nevertheless continued to provide performances of
Plaintiffs’ works at the Irish Times. Further, Plaintiffs submitted affidavits asserting that the

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unpaid licensing fees to which they would have been entitled from Defendants between February
2010 and January 2013 would have been approximately twelve thousand seven hundred fortyfour dollars and forty-eight cents ($12,744.48). (Dkt. No. 34, at 4 [Stevens Decl. at ¶ 16].) With
an award of four thousand dollars ($4,000.00) per each of the six infringements, Plaintiffs are
asking for statutory damages less than two times the amount of licensing fees to which Plaintiffs
were entitled. See N. Lights, Inc., 555 F. Supp.2d at 333 (awarding plaintiff $4,000.00 per
infringement for ten acts of infringement alleged in complaint where affidavit asserted a loss of
$24,890.61 in unpaid licensing fees); Broad. Music, Inc., v. R. Bar of Manhattan, Inc., 919 F.
Supp. 656, 659 (S.D.N.Y. 1996) (awarding statutory damages in an amount of five times the
unpaid licensing fees). The Court notes that Defendants’ culpable state of mind, Plaintiffs’ loss
in licensing fees, the deterrent effect such award will have on Defendants and third parties, and
Defendants’ general strategy of delay and noncompliance are further factors that weigh in favor
of awarding Plaintiffs’ requested statutory damages.
Finally, the Court notes that, even if it had not found Defendants willfully infringed
Plaintiffs’ copyrights, an award of four thousand dollars ($4,000.00) per infringement would
have appropriately fallen within the statutory limits imposed by 17 U.S.C. § 504(c)(1).
For all of these reasons, Plaintiffs’ request for statutory damages in the amount of
twenty-four thousand dollars ($24,000.00) is granted.
4.

Whether Plaintiffs Are Entitled to Attorneys’ Fees

After carefully considering the matter, the Court must answer this question in the
negative.

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Pursuant to Section 505 of the Copyright Act, a district court may “in its discretion . . .
award a reasonable attorneys’ fee to the prevailing party” of a copyright suit. 17 U.S.C. § 505.
When considering whether attorneys’ fees are appropriate, a district court may consider, among
others, the following factors: “(1) the frivolousness of the non-prevailing party’s claims or
defenses; (2) the party’s motivation; (3) whether the claims or defenses were objectively
unreasonable; and (4) compensation and deterrence.” Bryant, 603 F.3d at 144; Haibo, Inc., 2012
WL 1377395, at *1. While any of these factors may be used “so long as [they] are faithful to the
purpose of the Copyright Act, the Second Circuit has specifically noted that the objective
reasonableness factor should be given substantial weight in determining whether to award
attorneys’ fees.” Haibo, Inc., 2012 WL 1377395, at *1 (internal citations omitted).
Here, as previously discussed, Defendants ignored Plaintiffs’ repeated warnings of
copyright infringement and failed to engage in negotiations over licensing rights despite
Plaintiffs’ multiple offers. Such willful blindness constitutes “objective unreasonableness.” DFK
Entm’t, 2012 WL 893470, at *5 (holding it was objectively unreasonable for defendant to
repeatedly ignore plaintiff’s letters and phone calls). Furthermore, Defendants here have failed to
offer any viable explanation or defense for their infringement. As the courts noted in DFK
Entertainment and Haibo, Inc., when defendants in a copyright infringement case receive
multiple warnings of their violations but fail to take action, and when they are also unable to
offer a viable explanation or defense for such violations, awarding a fee is appropriate and
necessary to advance the Copyright Act’s “considerations of compensation and deterrence.” See
id; Haibo, Inc., 2012 WL 1377395, at *1. The Court also finds that Defendants adopted a
strategy of noncompliance and delay in responding to Plaintiffs’ demands to cease infringement

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and these subsequent legal proceedings. Such factors weigh in favor of awarding Plaintiffs
reasonable attorneys’ fees.
With regard to the amount of attorneys’ fees to award, the Second Circuit awards
attorneys’ fees based on a “presumptively reasonable fee” calculated by multiplying the
reasonable hourly rate, by the hours reasonably expended. Porzig v. Dresdner, Kleinwort,
Benson, N. Am. LLC, 497 F.3d 133, 141 (2d Cir. 2007); DFK Entm’t, 2012 WL 893470, at *6.
Generally, a court determines the hours reasonably expended by reviewing contemporaneous
time records that show, for each attorney, the date, the hours expended, and the nature of the
work done. Arbor Hill Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 191 (2d.
Cir. 2008); see, e.g., Dotson v. City of Syracuse, 04-CV-1388, 2014 WL 1764494, at *2
(N.D.N.Y. Apr. 30, 2014) (Mordue, J.) (identifying differing reasonable hourly rates based on
the seniority and skill of attorneys and legal staff, as well as the type of work performed). It is
therefore generally the case that applications for attorneys’ fee awards be documented by such
contemporaneously created records. See Kirch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.
1998). Where descriptions of work performed are “vague and ambiguous, the court cannot assess
the reasonableness of the entries.” Dotson, 2013 WL 1764494, at *3. Consequently, the court
may eliminate or reduce the fees. Baim v. Notto, 316 F. Supp.2d 113, 122 (N.D.N.Y. 2003)
(Hurd, J.).
Here, there is insufficient documentation before the Court to consider what a
presumptively reasonable fee would be in this case. While some courts have declined to
eliminate or reduce the presumptively reasonable fee amount where individual entries lack
specificity and detail, the Court here finds the entire record lacking. See, e.g., Dotson, 2013 WL

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1764494, at *3 (“[W]hile some of the individual entries lack specificity and detail, the Court
finds that such entries, when considered in the context of the entire billing summary, generally
establish the subject matter of the work performed.”); Bridges v. Eastman Kodak, 91-CV-7985,
1996 WL 47304, at *4 (S.D.N.Y. Feb. 6, 1996) (declining to reduce the presumptively
reasonable fee amount, notwithstanding occasional vague descriptions of work, where the
records, overall, indicated reasonableness of each task and time expended). Plaintiffs’ counsel
has requested an award of seven thousand dollars ($7,000.00) for work up to the preparation and
filing of Plaintiffs’ motion for default judgment. (Dkt. No. 32, Attach. 2, at 2 [Slifkin Decl. ¶
11].) Counsel submits that seven thousand dollars ($7,000.00) represents 17.5 hours of work at a
rate of four hundred dollars ($400.00) per hour. (Dkt. No. 32, Attach. 2, at 2 [Slifkin Decl. ¶
10].) However, counsel has failed to provide any invoices, expenditure reports, or billing
statements, and thus this Court can neither determine the reasonableness of each task and the
time expended, nor who performed the work at issue.
For these reasons, Plaintiffs’ request for attorneys’ fees is denied without prejudice to
refiling within thirty (30) days of the date of this Decision and Order.
ACCORDINGLY, it is
ORDERED that Plaintiffs’ motion for summary judgment (Dkt. No. 32) is GRANTED;
and it is further
ORDERED that Defendants Roche and Wexford, and all persons acting on their
permission or authority, are PERMANENTLY ENJOINED from infringing the copyrighted
musical compositions licensed by Plaintiff Broadcast Music, Inc.; and it is further

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ORDERED that the Clerk of the Court shall enter judgment in favor of Plaintiffs and
against Defendants Roche and Wexford in the amount of TWENTY-FOUR THOUSAND
DOLLARS ($24,000.00); and it is further
ORDERED that Plaintiffs’ request for attorneys’ fees is DENIED without prejudice to
refiling within THIRTY (30) DAYS of the date of this Decision and Order; and it is further
ORDERED that this Court retain jurisdiction over this action for the purpose of
enforcing the judgment granted. The Clerk of the Court is directed to enter judgment and close
this case.
Dated: September 15, 2014
Syracuse, New York

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