Broadcast Music, Inc. et al v. Nolan Enterprises, Inc. et al

Filing 22

OPINION AND ORDER granting 19 Motion for Summary Judgment. Signed by Magistrate Judge Norah McCann King on 1/11/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BROADCAST MUSIC, INC., et al.,
Plaintiffs,
vs.

Civil Action 2:11-CV-705
Magistrate Judge King

NOLAN ENTERPRISES, INC., et al.,
Defendants.

OPINION AND ORDER
This is an action for copyright infringement under 17 U.S.C. §
101 et seq., in which plaintiffs allege that defendants willfully
performed or caused to be performed copyrighted compositions at
Centerfold Club in Columbus, Ohio, without license or authority.

This

matter is now before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), for consideration of Plaintiffs’
Motion for Summary Judgment (“Plaintiffs’ Motion”), Doc. No. 19.
Plaintiffs’ Motion seeks injunctive relief, $20,000 in statutory
damages, and reasonable attorneys’ fees and costs.

Defendants oppose

Plaintiffs’ Motion on the basis that they did not willfully infringe
plaintiffs’ copyrights.

Reply of Defendants to Plaintiffs’ Motion for

Summary Judgment (“Defendants’ Response”), Doc. No. 20.
have filed a reply.

Plaintiffs

Plaintiffs’ Reply Brief in Support of Motion for

Summary Judgment (“Plaintiffs’ Reply”), Doc. No. 21.
that follow, Plaintiffs’ Motion is GRANTED.

For the reasons

I.

Background
Plaintiff Broadcast Music, Inc. (“BMI”) possesses the right to

license the public performances of numerous copyrighted musical
compositions owned by each of the nine other plaintiffs in this
action.

Declaration of John Coletta (“Coletta Declaration”), Doc. No.

19-1, ¶ 2.

BMI alleges that defendants willfully performed or caused

to be performed four copyrighted compositions at Centerfold Club, a
“strip club” in Columbus, Ohio, on October 2, 2010, without license or
authority.

Defendant Nolan Enterprises, Inc. (“Nolan Enterprises”) is

the legal entity that owns or controls Centerfold Club.

Defendants’

Responses to Plaintiffs’ First Set of Interrogatories Propounded to
Defendants, Doc. No. 19-9, pp. 4-5;

Defendants’ Responses to

Plaintiffs’ First Request for Admissions to Defendants, Doc. No. 19-9,
p. 15.

Defendant Frederick Tegtmeier is the sole owner of Nolan

Enterprises.

Defendants’ Responses to Plaintiffs’ First Set of

Interrogatories Propounded to Defendants, Doc. No. 19-9, pp. 4-5
On October 2, 2010, Nolan Enterprises and Tegtmeier operated,
maintained, and had a direct financial interest in Centerfold Club and
had the right and ability to direct and control its activities.
Defendants’ Responses to Plaintiffs’ First Request for Admissions to
Defendants, Doc. No. 19-9, pp. 16-17.

Tegtmeier also had the ability

to supervise the persons employed by Centerfold Club.

Id. at p. 17.

Sometime prior to August 2008, BMI learned that defendants were
offering musical entertainment at Centerfold Club without a BMI
license.

Stevens Declaration, Doc. No. 19-3, ¶ 3.

On August 15,

2008, BMI sent a letter to Tegtmeier at Centerfold Club and advised

2

that a license was required to publically perform BMI affiliated
music.

Letter Dated August 15, 2008, Doc. No. 19-5, p. 2.

From

September 22, 2008 through October 6, 2010, BMI sent approximately 23
letters to defendants informing them that a license was required to
publicly perform BMI copyrighted musical works.
¶¶ 5-6; Letters, Doc. No. 19-5, pp. 3-29.

Stevens Declaration,

In much of the

correspondence, plaintiffs offered terms of a license that would
authorize the public performance of BMI’s music at Centerfold Club.
See id. at pp. 3-29.

Letters sent on April 30 and October 6, 2010

directed defendants to cease and desist all use of BMI licensed music
at Centerfold Club.

Id. at pp. 25, 29; Stevens Declaration, ¶ 6.

In

addition to the letters sent to defendants, BMI’s licensing personnel
telephoned Centerfold Club on seventy-nine occasions and visited the
club on four occasions.

Stevens Declaration, ¶¶ 8-9.

Defendants did

not respond to plaintiffs’ letters, see id. at ¶ 5; Letter Dated
February 11, 2011, Doc. No. 19-5, p. 34, and at no time have
defendants entered into a licensing agreement with BMI.

Defendants’

Responses to Plaintiffs’ First Request for Admissions to Defendants,
Doc. No. 19-9, p. 22; Defendants’ Response, pp. 1-2.
On October 2, 2010, plaintiffs sent an investigator, Scott
Farkas, to Centerfold Club to make an audio recording and written
report of the music being publicly performed at that establishment.
Stevens Declaration, ¶ 11.

According to plaintiffs, that

investigation revealed that defendants publicly performed four BMI
copyrighted music works on that date.
Report, Doc. No. 19-4.

Id.; Certified Infringement

Plaintiffs advised defendants of their

3

investigation by a letter dated February 2, 2011 and offered to
resolve the matter by entering into a license agreement in exchange
for payment of outstanding licensing fees and costs of investigation
in the amount of $5,208.16.

Letter Dated February 2, 2011, Doc. No.

19-5, p. 30; Stevens Declaration, ¶ 12.
According to Lawrence E. Stevens, Assistant Vice President of
General Licensing for BMI, “[h]ad the [d]efendants entered into an
agreement at the time BMI first contacted them in August 2008, the
blanket license fees from August 1, 2008 through September 30, 2012
would have been approximately $6,951.88; and the blanket license fees
for the year commencing October 1, 2012 will be approximately
$2,012.50.”
II.

Stevens Declaration, ¶ 16.

Standard
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The judgment sought shall
discovery and disclosure
affidavits show that there
material fact and that the
as a matter of law.
Fed. R. Civ. P. 56(c).

be rendered if the pleadings,
materials on file, and any
is no genuine issue as to any
movant is entitled to judgment

Pursuant to Rule 56(c), summary judgment is

appropriate if “there is no genuine issue as to any material fact.”
Id.

In making this determination, the evidence “must be viewed in the

light most favorable” to the non-moving party.
& Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H. Kress

Summary judgment will not lie if the

dispute about a material fact is genuine, “that is, if the evidence is
such that a reasonable jury could return a verdict for the non-moving

4

party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

However, summary judgment is appropriate if the opposing party “fails
to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the
burden of proof at trial.”
322 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317,

The “mere existence of a scintilla of evidence in support

of the [opposing party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [opposing
party].”

Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
III. Discussion
A.

Infringement

To establish a claim for copyright infringement of a
musical work by means of public performance, a claimant
must prove: (1) the originality and authorship of a
composition; (2) a valid copyright under the formalities of
5

the Copyright Act; (3) claimant's ownership of the
copyright at issue; (4) defendant's public performance of
the composition; and (5) defendant's failure to obtain
permission from the claimant for such performance.
Jobete Music Co., Inc. v. Johnson Communc’ns, Inc., 285 F.Supp.2d
1077, 1082 (S.D. Ohio 2003) (citing Varry White Music. V. Banana Joe’s
of Akron, Inc., No. 5:01CV1074, 2002 WL 32026609 (N.D. Ohio Oct. 28,
2002)).

See also Superhype Pub., Inc. v. Vasiliou, 838 F.Supp. 1220,

1224 (S.D. Ohio 1993).
Plaintiffs have submitted the declaration of John Coletta, BMI’s
Vice President of Legal Affairs, to establish the first three elements
of their claim.

Coletta Declaration, Doc. No. 19-1.

Attached to Mr.

Coletta’s declaration is a list of the musical works allegedly
infringed, registration certificates issued by the United States
Copyright Office for the musical works, and documentation relating to
the chain of ownership of each copyrighted work.

See id., pp. 19-2.

Defendants have not disputed this evidence, nor have they otherwise
created a genuine issue of material fact regarding plaintiffs'
ownership of valid copyrights in the songs at issue in this
litigation.

Plaintiffs have therefore established their ownership of

valid copyrights in the four songs allegedly infringed.

See 17 U.S.C.

§ 410(c).
As to the fourth element, plaintiffs have submitted a “Certified
Infringement Report” as evidence that defendants publicly performed
plaintiff’s copyrighted works.
No. 19-4.

Certified Infringement Report, Doc.

The Certified Infringement Report was prepared by Scott

Farkas, who visited Centerfold Club on October 2, 2010 and who
documents that BMI works were publicly performed at that
6

establishment.

Id.; Stevens Declaration, ¶ 11.

Again, defendants

have presented no contradictory evidence in their response to
Plaintiffs’ Motion.

Therefore, the Court finds that the “public

performance” element of plaintiffs’ claims has been satisfied.
Finally, plaintiffs allege, and defendants concede, that they did
not have a BMI license to publicly perform the copyrighted music on
October 2, 2010.

See Defendants’ Responses to Plaintiffs’ First

Request for Admissions to Defendants, Doc. p. 22; Defendants’
Response, pp. 1-2.

Accordingly, there is no genuine issue of material

fact regarding the fifth element of plaintiffs’ claims.
Defendants offer no evidence, nor do they make any argument,
contesting the alleged infringements.
1-6.

See Defendants’ Response, pp.

Instead, defendants appear to argue that the alleged

infringement was not done “willfully” or with knowledge.

See id. at

pp. 1, 3, 4 (“The alleged infringement has not been willful . . . .”).
The only evidence offered by defendants is the affidavit of Tegtmeier,
who avers that, “[a]t no time has [Nolan Enterprises or Tegtmeier]
willfully disregarded or infringed on copyrights. . . .

[Nolan

Enterprises] is willing to pay [a] commercially reasonable licensing
fee.”

Tegtmeier Affidavit, attached to Defendants’ Response, at ¶ 3.

This evidence is insufficient to create a genuine issue of material
fact regarding plaintiffs’ copyright infringement claims.
B.

Liability

Having concluded that plaintiffs established unlawful
infringement, the Court now turns to the issue of defendants’
liability.

Plaintiffs argue that Nolan Enterprises and Tegtmeier are

7

jointly and severally liable for infringement at Centerfold Club.
Plaintiffs’ Motion, p. 15-17.

Defendants appear to argue that they

are not liable for the infringement because they had no knowledge of
the particular music played on October 2, 2012.

See Defendants’

Response, p. 3.
In Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.
417 (1984), the United States Supreme Court observed that
[t]he Copyright Act does not expressly render anyone liable
for infringement committed by another. . . .
[However,]
vicarious liability is imposed in virtually all areas of
the law, and the concept of contributory infringement is
merely a species of the broader problem of identifying the
circumstances in which it is just to hold one individual
accountable for the actions of another.
Id. at 434–435.

Accordingly, Nolan Enterprises, as the entity that

operated, maintained, had a direct financial interest in, and had the
right and ability to direct and control the activities of Centerfold
Club on October 2, 2010, see Doc. No. 19-9, pp. 15-17, is liable for
the infringement, regardless of whether it had knowledge of the music
actually played on that date.

See Broadcast Music, Inc. v. Branham,

No. C-1-80-124, 1982 WL 1271, at *2 (S.D. Ohio July 8, 1982) (citing
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 157 (1975) (“The
entrepreneur who sponsors such a public performance for profit is also
an infringer . . . .”).
As to Tegtmeier, “[c]ourts within virtually every circuit,
including the Sixth Circuit, have adopted a two-prong test to
determine whether a corporate officer is jointly and severally liable
with the corporation for copyright infringement.”

Broadcast Music,

Inc. v. Rooster’s Inc., No. 04-140-DLB, 2006 WL 335583, at *3 (E.D.

8

Ky. Feb. 14, 2006) (citing Jobete Music Co., 285 F.Supp.2d at 1083).
See also Broadcast Music, Inc. v. H.S.I., Inc., No. C2-06-482, 2007 WL
4207901, at *3 (S.D. Ohio Nov. 26, 2007) (quoting Metro-Goldwyn-Mayer
Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)).

On

October 2, 2010, Tegtmeier operated, maintained, had a direct
financial interest in, had the ability to direct and control the
activities of, and had the ability to supervise the persons employed
by Centerfold Club on that date.

See Doc. No. 19-9, pp. 15-17.

Tegtmeier is therefore also vicariously liable for the infringement of
plaintiffs’ copyrights that occurred at Centerfold Club on that date.
C.

Injunctive Relief

Plaintiffs request that the Court enjoin defendants from further
unauthorized public performances of BMI’s copyrighted music, pursuant
to 17 U.S.C. § 502.

Plaintiffs’ Motion, pp. 1, 9-10.

Defendants

argue that plaintiffs are not entitled to an injunction because money
damages are adequate and because “music is an integral part” of the
operation of a “strip club;” to grant the injunctive relief requested
by plaintiffs, defendants argue, will force Centerfold Club to close.
Defendants’ Response, pp. 3-4.
The Copyright Act authorizes a court to order temporary or final
injunctive relief as a remedy for infringement “on such terms as it
may deem reasonable to prevent or restrain infringement of a
copyright.”

17 U.S.C. § 502(a).

It is well established “that a

showing of past infringement and a substantial likelihood of future
infringement justifies issuance of a permanent injunction.”
Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 492 (6th

9

Cir. 2007) (citations and quotations omitted).

“Not only is the

issuance of a permanent injunction justified ‘when a copyright
plaintiff has established a threat of continuing infringement, he is
entitled to an injunction.’”

Id. (emphasis in original) (quoting Walt

Disney Co. v. Powell, 897 F.2d 565, 567 (D.C. Cir. 1990)).

Otherwise,

awarding damages without injunctive relief would amount to a “̔forced
license to use the creative work of another.’”

Id. (quoting

Silverstein v. Penguin Putnam, Inc., 368 F.3d 77, 84 (2d Cir. 2004)).
In the case presently before the Court, plaintiffs have
established past infringement on the part of defendants.

Further,

defendants have persistently disregarded plaintiffs’ invocation of
their rights and of plaintiffs’ offer to license their works.

See

also Defendants’ Response, pp. 2-3 (“First, almost all of the
telephone calls and correspondence occurred before the October 2, 2010
on-site inspection by BMI.”).

Under these circumstances, the Court

concludes that there is a substantial likelihood of future
infringement.

See Broadcast Music, Inc. v. Pub Dayton, LLC, No. 3:11-

cv-58, 2011 WL 2118228, at *2-3 (S.D. Ohio May 27, 2011).
Accordingly, plaintiffs are entitled to an injunction enjoining
defendants from publicly performing BMI’s copyrighted music without a
license.
D.

Statutory Damages

Plaintiffs also seek statutory damages of $5,000 for each of the
four claimed infringements.

Plaintiffs’ Motion, p. 16.

The Copyright

Act permits plaintiffs to seek statutory damages in lieu of actual
damages attributable to the infringement.

10

17 U.S.C. § 504(a)-(c).

Statutory damages for each individual act of infringement can be no
less than $750 and no more than $30,000.

17 U.S.C. § 504(c)(1).

Where the copyright owner establishes willful infringement, the Court
may increase the award of statutory damages to $150,000.
504(c)(2).

17 U.S.C. §

“The Court has substantial discretion to set statutory

damages within the permitted range, but it is not without guidance.”
H.S.I., Inc., 2007 WL 4207901 at *4 (citing Douglas v. Cunningham, 294
U.S. 207, 210 (1935)).

When determining the proper amount of

statutory damages, “̔courts have looked to: (1) whether [d]efendants'
infringement was willful, knowing, or innocent; (2) [d]efendants'
profit from infringement; (3) [p]laintiffs' loss from infringement;
and (4) deterring future violations by [d]efendants and similarly
situated entities.’”

Broadcast Music, Inc. v. 4737 Dixie Highway,

LLC, No. 1:12-cv-506, 2012 WL 4794052, at *4 (S.D. Ohio Oct. 9, 2012)
(quoting H.S.I., Inc., 2007 WL 4207901 at *6).
The parties first dispute whether defendants willfully infringed
plaintiffs’ copyrights.

In an action for copyright infringement,

“willfully” means with knowledge that the defendant’s
conduct constitutes copyright infringement.
Otherwise,
there would be no point in providing specially for the
reduction of minimum awards in the case of innocent
infringement, because any infringement that was nonwillful
would necessarily be innocent.
This seems to mean, then,
that one who has been notified that his conduct constitutes
copyright infringement, but who reasonably and in good
faith believes the contrary, is not “willful” for these
purposes.
Princeton Univ. Press v. Mich. Document Serv., Inc., 99 F.3d 1381,
1392 (6th Cir. 1996) (citations omitted).
This is a case of willful infringement.

Beginning in August

2008, BMI sent defendants more than twenty letters, called Centerfold
11

Club 79 times, and sent representatives to the club on four occasions,
demanding that defendants secure a license in order to lawfully
perform BMI’s copyrighted music.

Stevens Declaration, ¶¶ 5-9.

BMI

also directed defendants on April 30 and October 6, 2010 to cease and
desist all use of BMI licensed music at Centerfold Club.
5, pp. 25, 29; Stevens Declaration, ¶ 6.

Doc. No. 19-

Defendants assert that the

Centerfold Club’s day shift manager was responsible for collecting the
mail, that the club has a high rate of employee turnover, and that
Tegtmeier does not start work until late in the evening.
Response, p. 12.

Defendants’

Defendants do not, however, deny that they received

these communications.

Instead, defendants argue that BMI’s

communications sent before October 2, 2010, i.e., the date of the
infringements at issue in this case, are a “mitigating” factor in
calculating statutory damages.

Defendants’ Response, p. 5.

To the

contrary, defendants’ receipt of these communications before the date
of the claimed infringements demonstrates that the infringement was in
fact willful.

See 4737 Dixie Highway, LLC, 2012 WL 4794052 at *3;

H.S.I., Inc., 2007 WL 4207901 at *5; Broadcast Music, Inc. v. Leyland
Co., LLC, No. 5:11CV2264, 2012 WL 5879838, at *9 (N.D. Ohio Nov. 21,
2012); Pub Dayton, LLC, 2011 WL 2118228 at *3.
With regard to profits and losses associated with the
infringements, plaintiffs have established $6,951.88 in lost licensing
fees from August 1, 2008 through September 30, 2012.
Declaration, ¶ 16.

Stevens

Although defendants argue that plaintiffs lost no

licensing fees prior to October 2, 2010, see Defendants’ Response, p.
4, the Court concludes that plaintiffs have sufficiently established

12

defendants’ costs savings as well as plaintiffs’ loss.

See 4737 Dixie

Highway, LLC, 2012 WL 4794052 at *3; Pub Dayton, LLC, 2011 WL 2118228
at *3-4.
As to the amount of the award, “̔in the narrow class of cases
dealing with willful, unauthorized, musical performances in public
establishments, the damages awards range from two times the licensing
fee to five times the licensing fee.’”

4737 Dixie Highway, LLC, 2012

WL 4794052 at *4 (quoting Broadcast Music, Inc. v. DeGallo, Inc., 872
F.Supp. 167, 169 (D.N.J. 1995)).

“In fact, cases within this Circuit

have recognized that the method of awarding statutory damages
based ̔on some multiple of unpaid fees is more appropriate than
measuring damages by the number of infringements.’”

Id. (quoting

H.S.I., Inc., 2007 WL 4207901 at *6 (awarding “statutory damages of
three times the unpaid fees”).
Plaintiffs’ request for statutory damages of $5,000 per
infringement, for a total award of $20,000, is less than three times
the amount of plaintiffs’ lost licensing fees.

Defendants suggest,

however, that the Court should award an amount equal to the unpaid
licensing fees or $750 - $1,000 per infringement.
Response, p. 4.

Defendants’

The Court rejects this suggestion as insufficient.

“If the Copyright Act is ̔to have any effect, judgment against
defendant must be appreciably more than the amount he would have had
to expend to obtain appropriate permission.’”

H.S.I., Inc., 2007 WL

4207901 at *6 (quoting Music City Music v. Alfa Foods, Ltd., 616
F.Supp. 1001, 1003 (E.D. Va. 1985)).

“Defendants ̔should be put on

notice that it costs less to obey the copyright laws than to violate

13

them.’”

Id. (quoting Rodgers v. Eighty Four Lumber Co., 623 F.Supp.

889, 892 (W.D. Pa. 1985)).

Defendants were on notice for two years

that the public performance of BMI-licensed music without license or
permission constituted copyright infringement.

Defendants

nevertheless refused to secure a license.
Accordingly, the Court AWARDS plaintiffs statutory damages in the
amount of $20,000, which constitutes an award of $5,000 for each of
the four claimed infringements.

This amount properly accounts for

defendants' gain, plaintiffs' loss, and the interest of the Copyright
Act in deterring future violations.
E.

Attorneys’ Fees and Costs

Finally, plaintiffs seek an award of reasonable attorneys’ fees
and costs.

Plaintiffs’ Motion, p. 16.

The Court is vested with the

discretion to award fees to the prevailing party in a copyright
infringement action.

17 U.S.C. § 505.

The United States Court of

Appeals for the Sixth Circuit has set forth a series of factors to
consider in determining whether to award attorney fees, including such
factors 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.’”

Zomba Enters., Inc. v. Panorama

Records, Inc., 491 F.3d 574, 589 (6th Cir. 2007) (quoting Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 (1994)).

“The grant of fees and

costs ̔is the rule rather than the exception and they should be
awarded routinely.’”

Bridgeport Music, Inc. v. WB Music Corp., 520

14

F.3d 588, 592 (6th Cir. 2008) (quoting Positive Black Talk Inc. v.
Cash Money Records, Inc., 394 F.3d 357, 380 (5th Cir. 2004)).
In the case presently before the Court, defendants willfully
infringed plaintiffs’ statutory rights despite numerous warnings that
a license was required in order to publicly perform BMI works.
Accordingly, plaintiffs are entitled to an award of their reasonable
attorneys’ fees and costs.
“It is well settled law that the ‘lodestar’ approach is the
proper method for determining the amount of reasonable attorneys’
fees.”

Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v.

Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995) (citing
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478
U.S. 546, 563 (1986)).

The lodestar approach multiplies the number of

hours reasonably spent by a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
presumption” that this figure is a reasonable fee.

Id. (quoting

There is a “strong
Id. (quoting

Delaware Valley, 478 U.S. at 565).
The Declaration of Ronald H. Isroff (“Isroff Declaration”), Doc.
No. 19-6, itemizes attorneys’ fees in the amount of $14,905.501 and
expenses in the amount of $465.41, for a total of $15,370.91.
Declaration, pp. 11-12.

Isroff

According to the Isroff Declaration,

attorneys Ronald Isroff and Christie Watchorn charged an hourly rate
in 2011 of $455 and $280, respectively.

1

Id. at ¶ 16.

In 2012,

$14,905.50 represents the total amount billed by attorneys Isroff, Watchorn,
and Thrush. Isroff Declaration, pp. 11-12. Attorney Isroff billed $8,845.50
for 11.90 hours in 2011 and 7.30 hours in 2012. Id. Attorney Watchorn
billed $5,576.00 for 5.10 hours in 2011 and 13.60 hours in 2012. Id.
Attorney Corey billed $484.00 for 2.20 hours in 2012. Id.
15

attorneys Isroff, Watchorn, and Corey Thrush charged at hourly rates
of $470, $305, and $220, respectively.

Id.

The Isroff Declaration

avers that these fees and costs were
reasonable and necessary to advance [p]laintiffs’
interest in this matter given the level of experience
of the lawyers, the time and labor required in light
of the fees customarily charged in this locality for
similar legal services.
Id. at ¶ 17.

Although defendants characterize Mr. Isroff’s rate as

unreasonable, Defendants’ Response, p. 6, defendants offer no evidence
in support of this characterization or controverting plaintiff’s
evidence in this regard.

Therefore, the Court concludes that

plaintiffs are entitled to attorneys’ fees and costs, pursuant to 17
U.S.C. § 505, in the amount of $15,370.91.
WHEREFORE, based on the foregoing, Plaintiffs’ Motion for Summary
Judgment, Doc. No. 19, is GRANTED.
Defendants are PERMANENTLY ENJOINED from publicly performing
BMI’s copyrighted music without a license.
Plaintiffs are AWARDED statutory damages in the amount of
$20,000.
Plaintiffs are AWARDED attorneys’ fees and costs in the amount of
$15,370.91.
The Clerk shall enter FINAL JUDGMENT in favor of plaintiffs.

January 11, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

16