Broadcast Music, Inc. et al v. DK 547, LLC et al
Filing
21
OPINION AND ORDER granting 18 motion for summary judgment. Signed by Magistrate Judge Norah McCann King on 4/15/13. (rew)
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-1064
Magistrate Judge King
DK 547, LLC, 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 DK 547, LLC
and Dimo Kuzmanovski (“Kuzmanovski”) performed or caused to be
performed nine (9) copyrighted musical compositions at Classics Sports
Bar – S High St. (“Classics Sports Bar”), 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. 18.
Plaintiffs’ Motion seeks injunctive relief,
$45,000 in statutory damages, and reasonable attorneys’ fees and
costs.
Defendants, who are represented by counsel who have been
expressly advised by the Court of the consequences of their failure to
respond to the motion, Order, Doc. No. 20, have nevertheless filed no
response to Plaintiffs’ Motion.
For the reasons that follow, Plaintiffs’ Motion is GRANTED.
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 fifteen other plaintiffs in this
action.
Declaration of Renee S. Wolfe (“Wolfe Declaration”), Doc. No.
18-1, ¶ 2.
BMI alleges that defendants performed or caused to be
performed nine (9) copyrighted compositions at Classics Sports Bar in
Columbus, Ohio, on October 2 and 3, 2010 and March 17, 2011.
Defendant DK 547, LLC is the legal entity that owns or controls
Classics Sports Bar.
Defendants’ Responses to Plaintiffs’ First Set
of Interrogatories to Defendants, Doc. No. 18-17, p. 3.
is the sole owner of DK 547, LLC.
Kuzmanovski
Id.
On the evening of October 2, 2010, in the early morning of
October 3, 2010, and on March 17, 2010, defendant DK 547, LLC,
operated, maintained, had the right and ability to direct and control
the activities of, and had a direct financial interest in Classics
Sports Bar.
Defendants’ Responses to Plaintiffs’ First Request for
Admissions to Defendants, Doc. No. 18-17, pp. 12, 14-15;
Defendant’s
[sic] Amended Response to Plaintiff’s [sic] Request to Admit, Doc. No.
18-18, p. 1.
Kuzmanovski held a financial interest in Classic Sports
Bar and, as the owner, had the “ability to direct the activities of”
and to “supervise the persons employed at Classic Sports Bar” on those
dates.
Id.
However, Kuzmanovski denies having “direct control over
the activities of” and “having the ability to supervise the persons
employed” by Classic Sports Bar because he was not present at Classic
2
Sports Bar on the relevant dates.
Defendant’s [sic] Amended Response
to Plaintiff’s [sic] Request to Admit, pp. 1-2.
Sometime prior to July 2009, BMI learned that defendants were
offering musical entertainment at Classic Sports Bar without a BMI
license.
Declaration of Lawrence E. Stevens (“Stevens Declaration”),
Doc. No. 18-11, ¶ 3.
On July 10, 2009, BMI sent a letter to
Kuzmanovski at Classics Sports Bar advising that a license was
required to publically perform copyrighted music and offering a
license to publicly perform BMI affiliated music.
10, 2009, Doc. No. 18-14, p. 1.
Letter Dated July
From October 8, 2009 through March
18, 2010, BMI sent approximately seven letters to defendants informing
them that a license was required to publicly perform BMI copyrighted
musical works.
pp. 3-10.
Stevens Declaration, ¶¶ 3-5; Letters, Doc. No. 18-14,
In much of the correspondence, plaintiffs offered terms of
a license that would authorize the public performance of BMI’s music
at Classics Sports Bar.
See Stevens Declaration, ¶¶ 3-5.
Letters
sent on May 3, June 30, July 19 and September 20, 2010 and on January
17 and on March 4, 2011 directed defendants to cease and desist all
use of BMI licensed music at Classics Sports Bar.
Letters, Doc. No. 18-14, pp. 12-20.
Id. at ¶¶ 3-6;
A letter dated July 1, 2010
notified defendants that a BMI music researcher had visited Classic
Sports Bar and had confirmed that defendants were “publicly performing
music which would require a public performance license.”
July 1, 2010, Doc. No. 18-14, p. 15.
3
Letter Dated
In addition to the letters sent to defendants, BMI’s licensing
personnel telephoned Classics Sports Bar on twenty-nine (29)
occasions.
Stevens Declaration, ¶ 8.
Defendants did not respond to plaintiffs’ letters, see id. at ¶¶
3, 5; Letters, Doc. No. 18-14, pp. 12-24, and at no time have
defendants entered into a licensing agreement with BMI.
Stevens
Declaration, ¶ 9.
On October 2, 2010, plaintiffs sent an investigator, Scott
Farkas, to Classics Sports Bar to make an audio recording and written
report of the music being publicly performed at that establishment.
Id. at ¶ 10.
According to plaintiffs, that investigation revealed
that defendants publicly performed five BMI copyrighted works on the
evening of October 2, 2010 and in the early morning hours of October
3, 2010.
Id.; Certified Infringement Report, Doc. No. 18-13.
On March 17, 2011, plaintiffs sent a second investigator, Robert
Allman, to Classics Sports Bar to make an audio recording and written
report of the music being publicly performed at that establishment.
Stevens Declaration, ¶ 12.
According to plaintiffs, that
investigation revealed that defendants publicly performed six BMI
copyrighted compositions on March 17, 2011.
Infringement Report, Doc. No. 19.
Id.; Certified
In a letter dated April 25, 2011,
plaintiffs advised defendants of the results of their investigation
and offered to resolve the matter by entering into a license agreement
in exchange for payment of outstanding licensing fees and costs of the
investigation in the amount of $11,613.12.
Letter Dated April 25,
2011, Doc. No. 18-14, p. 21; Stevens Declaration, ¶ 13.
4
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 July 2009, the blanket
license fees from July 1, 2009 through June 30, 2010 would
have been approximately $4,617.00; the blanket license fees
from July 1, 2010 through June 30, 2011 would have been
approximately $4,779.00; the blanket license fees from July
1, 2011 through June 30, 2012 would have been approximately
$4,779.00; and the blanket license fees for the year
commencing July 1, 2012 would have been approximately
4,833.00.
Stevens Declaration, ¶ 18.
Plaintiffs’ Motion seeks an injunction against further
infringement, statutory damages in the amount of $5,000.00 for each of
the nine alleged copyright infringements, costs and attorney’s fees
and interest on the judgment.
II.
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 court shall grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter
of law.”
Fed. R. Civ. P. 56(a).
Pursuant to Rule 56(a), summary
judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”
Id.
In making this determination, the evidence “must be viewed
in the light most favorable” to the non-moving party.
Kress & Co., 398 U.S. 144, 157 (1970).
Adickes v. S.H.
Summary judgment will not lie
if the dispute about a material fact is genuine, “that is, if the
5
evidence is such that a reasonable jury could return a verdict for the
non-moving party.”
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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.”
477 U.S. 317, 322 (1986).
Celotex Corp. v. Catrett,
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
As noted supra, defendants have not responded to Plaintiffs’
Motion; the facts stated in the affidavits and other papers submitted
6
in support of Plaintiffs’ Motion will therefore be accepted as true by
the Court.
A.
See Fed. R. Civ. P. 56(e).
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
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 Renee Wolfe, a BMI
attorney, to establish the first three elements of their claim.
Declaration, Doc. No. 18-1.
Wolfe
Ms. Wolfe’s declaration references the
Schedule attached as Exhibit A to the Complaint, which lists the
musical works allegedly infringed and the registration dates and
numbers for each;
the Wolfe Declaration also attaches registration
certificates issued by the United States Copyright Office for the
musical works as well as documentation relating to the chain of
ownership of each copyrighted work.
See Wolfe Declaration, ¶ 4 and
attachments (Doc. Nos. 18-1 – 18-10).
Defendants have not
controverted 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.
7
Plaintiffs have
therefore established their ownership of valid copyrights in the nine
songs allegedly infringed.
See 17 U.S.C. § 410(c).
As to the fourth element, i.e., the defendants’ public
performance of the copyrighted works, plaintiffs have submitted two
“Certified Infringement Report[s]” as evidence of that element.
Certified Infringement Report, Doc. No. 18-12; Certified Infringement
Report, Doc. No. 19.
The Certified Infringement Reports were prepared
by Scott Farkas and Robert Allman, who visited Classics Sports Bar on
October 2 and 3, 2010 and on March 17, 2011, respectively, and who
documented that BMI works were publicly performed at that
establishment on those dates.
Certified Infringement Report, Doc. No.
18-12; Certified Infringement Report, Doc. No. 19; Stevens
Declaration, ¶¶ 10, 12.
Again, defendants have presented no
contradictory evidence.
The Court therefore concludes that the
“public performance” element of plaintiffs’ claims has been satisfied.
Finally, defendants did not have a BMI license to publicly
perform the copyrighted music on October 2, 2010, October 3, 2010, or
March 17, 2011.
See Stevens Declaration, ¶ 4; Defendants’ Responses
to Plaintiffs’ First Request for Admissions to Defendants, Doc. No.
18-17, p. 20.
The Court therefore expressly finds that defendants
lacked plaintiffs’ permission to perform BMI copyrighted music.
Accordingly, there is no genuine issue of material fact regarding
plaintiffs’ copyright infringement claims and plaintiffs are entitled
to judgment as a matter of law on those claims.
8
B.
Liability
Having concluded that plaintiffs established unlawful
infringement, the Court now turns to the issue of defendants’
liability.
Plaintiffs argue that DK 547, LLC and Kuzmanovski are
jointly and severally liable for infringement at Classics Sports Bar.
Plaintiffs’ Motion, pp. 7-9.
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, DK 547, LLC, 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 Classics
Sports Bar on October 2 and 3, 2010 and on March 17, 2011, is liable
for the infringement regardless of whether it had actual knowledge of
the music played on those dates.
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 . . . .”)).
Defendant Kuzmanovski is the president and owner of DK 547, LLC.
“Courts 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
9
infringement.”
Broadcast Music, Inc. v. Rooster’s Inc., No. 04-140-
DLB, 2006 WL 335583, at *3 (E.D. 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)).
[F]or a corporate officer to be vicariously liable, he must
possess: (1) the right and ability to supervise the
infringing activity, and (2) a direct financial interest in
such activities. Thus, under this standard, liability for
copyright infringement is not limited to those individuals
who directly engage in infringing activity.
Rooster’s Inc., 2006 WL 335583, at *3 (citing Jobete Music Co., 285
F.Supp.2d at 1083).
Defendant Kuzmanovski has admitted that he held a financial
interest in Classic Sports Bar and that, as the owner, he had the
“ability to direct the activities of” and to “supervise the persons
employed at Classic Sports Bar” on the evening of October 2, 2010, in
the early morning hours of October 3, 2010, and on March 17, 2010.
is of no legal consequence that he was not present at Classic Sports
Bar when the alleged infringements occurred.
See Broadcast Music,
Inc. v. Nolan Enters., Inc., No. 2:11-cv-705, 2013 WL 143370, at *3
(S.D. Ohio Jan. 11, 2013).
Defendant Kuzmanovski is therefore also
vicariously liable for the infringement of plaintiffs’ copyrights on
those dates.
C.
Injunctive Relief
Plaintiffs ask that the Court enjoin defendants from further
unauthorized public performances of BMI’s copyrighted music. The
Copyright Act authorizes temporary or final injunctive relief as a
10
It
remedy for infringement “on such terms as [the court] may deem
reasonable to prevent or restrain infringement of a copyright.”
U.S.C. § 502(a).
17
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 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 by defendants.
Further, defendants have
persistently disregarded plaintiffs’ invocation of their rights and of
plaintiffs’ offer to license their copyrighted works.
Under these
circumstances, the Court concludes that plaintiffs have established a
substantial likelihood of future infringement by defendants.
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.
11
D.
Statutory Damages
Plaintiffs also seek statutory damages of $5,000 for each of the
nine claimed infringements.
The Copyright Act permits an award of
statutory damages in lieu of actual damages attributable to the
infringement.
17 U.S.C. § 504(a)-(c).
Statutory damages for each
individual act of infringement ordinarily ranges from $750 to $30,000.
17 U.S.C. § 504(c)(1).
Where the copyright owner establishes willful
infringement, however, the Court may increase the award of statutory
damages to $150,000 per infringement.
17 U.S.C. § 504(c)(2).
“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).
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.
12
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 July 2009,
BMI sent defendants approximately fourteen letters and called Classics
Sports Bar 29 times demanding that defendants secure a license in
order to lawfully perform BMI’s copyrighted music.
BMI also directed
defendants on multiple occasions to cease and desist all use of BMI
licensed music at Classics Sports Bar.
Defendants’ receipt of these
communications before the date of the claimed infringements
demonstrates that each 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 more than $15,000 in lost
licensing fees from July 1, 2009 to the present.
The Court concludes
that this amount sufficiently establishes 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
13
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 $45,000, is less than three times
the amount of plaintiffs’ lost licensing fees.
The Court concludes
that this amount is reasonable under the circumstances.
“If the
Copyright Act is ̔to have any effect, judgment against defendant[s]
must be appreciably more than the amount [they] 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
them.’”
Id. (quoting Rodgers v. Eighty Four Lumber Co., 623 F.Supp.
889, 892 (W.D. Pa. 1985)).
Defendants had actual notice for more than
a year that their public performance of BMI-licensed music without
license or permission constitutes copyright infringement.
Defendants
nevertheless refused to secure a license.
Accordingly, the Court concludes that statutory damages in the
amount of $45,000, which constitutes an award of $5,000 for each of
the nine claimed infringements, properly accounts for defendants'
gain, plaintiffs' loss, and the interest of the Copyright
Act in deterring future violations.
14
E.
Attorneys’ Fees and Costs
Finally, plaintiffs seek an award of reasonable attorneys’ fees
and costs.
The Court is vested with the discretion to award fees to
the prevailing party in a copyright infringement action.
505.
17 U.S.C. §
The United States Court of Appeals for the Sixth Circuit has
identified 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 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
15
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. 18-15, itemizes attorneys’ fees in the amount of $10,681.001 and
costs in the amount of $350.00, for a total of $11,031.00.
Declaration, pp. 2-11.
Isroff
According to the Isroff Declaration, attorney
Ronald Isroff charged an hourly rate in 2011, 2012 and 2013 of $455,
$470, and $480, respectively, and attorney Christine E. Watchorn
charged an hourly rate of $280, $305 and $320 in 2011, 2012 and 2013,
respectively.
Id. at ¶ 9.
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 ¶ 10.
Again, defendants offer no contradictory evidence.
The
Court therefore concludes that plaintiffs are entitled to attorneys’
fees and costs, pursuant to 17 U.S.C. § 505, in the amount of
$11,031.00.
1
$10,681 represents the total amount billed by attorneys Ronald Isroff and
Christine Watchorn. Isroff Declaration, pp. 2-11. Attorney Isroff billed
$3,032 for 1.8 hours in 2011, 4.3 hours in 2012 and 0.40 hours in 2013. Id.
Attorney Watchorn billed $7,649.00 for 1.90 hours in 2011, 22.60 in 2012 and
0.70 hours in 2013. Id.
16
WHEREUPON, and based on the foregoing, Plaintiffs’ Motion for
Summary Judgment, Doc. No. 18, is GRANTED.
Defendants DK 547, LLC, and Dimo Kuzmanovski are PERMANENTLY
ENJOINED from publicly performing BMI’s copyrighted music without a
license.
Plaintiffs are AWARDED statutory damages from defendants DK 547,
LLC, and Dimo Kuzmanovski in the amount of $45,000.
Plaintiffs are AWARDED attorneys’ fees and costs from defendants
DK 547, LLC, and Dimo Kuzmanovski in the amount of $11,031.00.
The Clerk shall enter FINAL JUDGMENT in favor of plaintiffs and
against defendants DK 547, LLC, and Dimo Kuzmanovski.
April 15, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?