Broadcast Music, Inc. et al v. River City Bar and Grill LLC et al

Filing 35

DEFAULT JUDGMENT in favor of Plaintiffs against River City Bar and Grill LLC in the total sum of $41,695.00 together with interest on the full amount of this judgment, from the date of this judgment, pursuant to 28 USC 1961. It is Ordered that dft and its agents, servants, employees, and all persons acting under its permission and authority be enjoined and restrained from infringing, in any manner, the copyrighted musical compositions licensed by BMI pursuant to 17 USC 502. Signed by District Judge Richard Voorhees on 2/26/2014. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO.: 5:13-cv-00046-RLV-DSC

BROADCAST MUSIC, INC.; WARNER-TAMERLANE
PUBLISHING CORP.; HOUSE OF BRYANT
PUBLICATIONS, LLC; COTILLION MUSIC, INC.;
TERRY STAFFORD MUSIC CO.; SCREEN GEMSEMI
MUSIC, INC.; SONGPAINTER MUSIC; SONY/ATV
SONGS LLC d/b/a SONY/ATV TREE PUBLISHING;
KENNY O’DELL MUSIC; ABKCO MUSIC, INC.;
FOREIGN IMPORTED PRODUCTIONS AND
PUBLISHING INC.; UNIVERSAL – SONGS OF
POLYGRAM INTERNATIONAL, INC.; SONY/ATV
SONGS LLC d/b/a SONY/ATV ACUFF ROSE MSUIC;
HOUSE OF GAGA PUBLISHING INC.; REDONE
PRODUCTION LLC d/b/a SONGS REDONE; PEER
INTERNATIONAL CORPORATION; SONGS OF
UNIVERSAL, INC.,
Plaintiffs,
v.
RIVER CITY BAR AND GRILL LLC d/b/a RIVER CITY
BAR AND GRILL; ANGELA J. HELSON AND JAY
HELSON, each individually,
Defendants.

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ORDER &
JUDGMENT

THIS MATTER is before the court on Plaintiff’s Motion for Default Judgment (Doc.
33) and Memorandum in Support (Doc. 34), both filed on September 30, 2013.
I.

DISCUSSION

Plaintiff Broadcast Music, Inc. (“BMI”) is a New York corporation that has been granted
the right to license the public performance rights in approximately 7.5 million copyrighted
musical compositions (the “BMI Repertoire”). (Doc. 1 at 2.) All other Plaintiffs in this suit were

joined pursuant to Fed. R. Civ. P. 17(a) and 19(a), and are the owners of the copyrights in the
musical compositions that are the subject of this lawsuit. (Id.)
Defendant River City Bar and Grill LLC (“River City LLC”) is a member-managed
limited liability company organized and existing under the laws of the State of North Carolina.
(Id. at 4.) River City LLC operates, maintains, and controls an establishment known as River
City Bar and Grill (the “Establishment”), located at 155C Pinnacle Lane, Mooresville, NC. (Id.)
Defendants Angela J. Helson and Jay Helson are members and managers of River City LLC with
responsibility for the operation and management of the limited liability company and the
Establishment. (Id.)
Plaintiffs allege seventeen claims of copyright infringement based upon Defendants’
unauthorized public performance of musical compositions from the BMI Repertoire. (Id. at 5.)
Plaintiffs’ claims are supported by the declarations of Kerri Howland-Kruse (“Howland-Kruse”)
(Doc. 33-1) and Lawrence E. Stevens (“Stevens”) (Doc. 33-2), along with other accompanying
exhibits.
The record reveals that Plaintiffs were successful in serving Defendants on April 9, 2013,
(Doc. 26), and Defendants’ failure to answer or otherwise respond to the complaint resulted in an
entry of Default by the Clerk of Court on June 28, 2013. (Doc. 30.)
Plaintiffs request relief1 in the form of (1) an injunction restraining River City LLC from
infringing the copyrighted musical compositions licensed by BMI, pursuant to 17 U.S.C. § 502;
(2) statutory damages in the amount of $35,000.00 (approximately $2,058.82 for each of the
seventeen claims), pursuant to 17 U.S.C. § 504(c); (3) Plaintiffs’ costs and reasonable attorney's

1

On May 31, 3013, Defendants Angela J. Helson and Jay Helson filed a Chapter 13 bankruptcy case in
the U.S. Bankruptcy Court for the Western District of North Carolina (Wilkesboro), Case No. 13-50477.
As a result of this bankruptcy filing and automatic stay, Plaintiff’s Motion for Default Judgment is limited
to Defendant River City LLC. (Doc. 33 at 2, fn. 1.)
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fees in the amount of $6,695.00, pursuant to 17 U.S.C. § 505; and (4) interest on these awards,
pursuant to 28 U.S.C. § 1961. (Doc. 33 at 1-2.)
A. Infringement
Plaintiffs have established each of their seventeen claims of copyright infringement for
Defendants’ unauthorized public performance of musical compositions from the BMI
Repertoire.2
Here, BMI made a number of phone calls and sent numerous warnings advising
Defendants that a license was required to perform any of the several million musical
compositions contained in the BMI Repertoire. (Doc. 33-2 at 2-3, ¶¶ 2-7.) BMI actually received
an improper application for license and fee from Angela Helson that was returned with
instructions on the proper procedure. (Id. at ¶6.) However, even after receiving five separate
cease and desist notices from BMI (Id. at ¶7), a BMI employee visited the Establishment and
made an audio recording that provides the basis for the seventeen copyright infringements claims
alleged in the Complaint. (Id. at 3-4, ¶¶ 11-13.)
Thus, Plaintiffs have proven copy right infringement by River City LLC in violation of
the United States Copyright Act of 1976, as amended, 17 U.S.C. Sections 101 et seq.
B. Injunctive Relief
Plaintiffs request that River City LLC d/b/a/ River City Bar and Grill and its agents,
servants, employees, and all persons acting under its permission and authority, be enjoined and
restrained from infringing, in any manner, the copyrighted musical compositions licensed by
BMI, pursuant to 17 U.S.C. § 502. (Doc. 33 at 2.)

Upon entry of default, the Court accepted as true Plaintiffs’ allegations. See Ryan v. Homecomings Fin.
Network, 253 F.3d 778, 780 (4th Cir. 2001) (other citations omitted.)
2

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Section 502 provides that a court may grant “final injunctions on such terms as it may
deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a).
Here, the requested injunctive relief is reasonable to prevent future copyright
infringements by River City LLC.
C. Statutory Damages
Plaintiffs request that River City LLC pay statutory damages in the amount of
$35,000.00, which represents an award of approximately $2,058.82 for each of the seventeen
claims of infringement, pursuant to 17 U.S.C. § 504(c). (Doc. 33 at 2.) Section 504(c) provides
in pertinent part:
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect,
at any time before final judgment is rendered, to recover, instead of actual damages and
profits, an award of statutory damages . . . in a sum of not less than $750 or more than
$30,000 as the court considers just.
(2) In a case where the copyright owner sustains the burden of proving, and the court
finds, that infringement was committed willfully, the court in its discretion may increase
the award of statutory damages to a sum of not more than $150,000.

17 U.S.C. 504(c)(1)-(2).
The Court finds that River City LLC’s infringement was willful. The Plaintiffs have
shown that on a number of occasions BMI provided River City LLC with notice of their existing
copyrights on musical compositions and the requirement for River City LLC to obtain a license
in order to lawfully perform the musical compositions. River City LLC’s notice of its own illegal
activity is clearly demonstrated by the improper attempt to apply for a license from BMI.
However, even after the phone calls, warnings, cease and desists letters, and attempted
application for a license, River City LLC persisted in their course of conduct, allowing infringing
performances of musical compositions. Therefore, the requested statutory damages of $2,058.82

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per infringement, totaling approximately $35,000.00, pursuant to Section 504(c)(1) and (2), are
proper.
D. Costs Including Reasonable Attorney’s Fees
Plaintiffs request that River City LLC pay costs including reasonable attorney’s fees in
the amount of $6,695.00, pursuant to 17 U.S.C. § 505. Section 505 provides that “the court in its
discretion may allow the recovery of full costs by or against any party . . . [and] the court may
also award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. §
505.
Having established seventeen claims of copyright infringement by River City LLC and
after undersigns review of the affidavit of Plaintiffs’ attorney M. Keith Kapp (Doc. 33-3),
Plaintiffs’ request for costs including reasonable attorney’s fees is appropriate.
E. Interest
Plaintiffs also request that River City LLC pay interest on the statutory damages and
costs awarded by this Court, pursuant to 28 U.S.C. § 1961. Section 1961 provides that “[i]nterest
shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C.
§ 1961(a).
As such, Plaintiffs’ request for interest to be paid on the damages award is proper.
II.

CONCLUSION

NOW, THEREFORE, the Court concludes that judgment by default should be hereby
entered against Defendant River City Bar and Grill LLC d/b/a River City Bar and Grill, in
accordance with the prayer of said Complaint, Motion for Default Judgment, Memorandum in
Support, and accompanying exhibits, for the sum set for below; and

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NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the
Plaintiffs have and recover of the Defendant the total sum of $41,695.00, together with interest
on the full amount of this judgment, from the date of this judgment, pursuant to 28 U.S.C. 1961;
and
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that
Defendant and its agents, servants, employees, and all persons acting under its permission and
authority, be enjoined and restrained from infringing, in any manner, the copyrighted musical
compositions licensed by BMI, pursuant to 17 U.S.C. § 502.
A judgment consistent with this Order is hereby entered simultaneously herewith.

Signed: February 26, 2014

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