J&J Sports Productions Inc v. Brady et al

Filing 50

ORDER denying 26 defendant's motion for summary judgment; a ruling on plaintiff's motion for summary judgment is deferred...see order for specifics. Signed by Honorable Joe Heaton on 03/10/2016. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
vs.
MAXINE BRADY, et al.,
Defendants.

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NO. CIV-15-0454-HE

ORDER
Plaintiff J & J Sports Productions, Inc. (“J & J”) filed this action against Maxine
Brady a/k/a Elizabeth M. Brady, individually and d/b/a Cantina The Amazons and others,1
asserting claims under the Communications Act of 1934, 47 U.S.C. 605, et seq., and the
Cable & Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553,
et seq.2 Plaintiff contends it held the exclusive nationwide television distribution rights to
the Floyd Mayweather, Jr. v. Robert GuerreroJuan Manuel Marquez, WBC Welterweight
Championship Fight Program (“Mayweather Fight”) telecast on Saturday, May 4, 2013, and
that defendant unlawfully intercepted and exhibited the fight. Both parties have moved for
summary judgment, which is appropriate only “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). “A genuine dispute as to a material fact ‘exists when the evidence,
1

Plaintiff dismissed its claims against the other defendants with prejudice. Doc. #37.

2

Section 605 prohibits the unauthorized reception of satellite communications, while § 553
prohibits the unauthorized reception of cable broadcasts. J & J Sports Prod., Inc. v. Perez, 2012
WL 3112421, at *1 n. 2 (W.D.Okla. July 31, 2012) (“Most courts have found that 47 U.S.C. § 605
applies to piracy of satellite communications and 47 U.S.C. § 553 applies to piracy of cable
broadcasts.”).

construed in the light most favorable to the non-moving party, is such that a reasonable jury
could return a verdict for the non-moving party.’” Carter v. Pathfinder Energy Servs., Inc.,
662 F.3d 1134, 1141 (10th Cir. 2011) (quoting Zwygart v. Bd. of Cnty. Comm'rs, 483 F.3d
1086, 1090 (10th Cir. 2007)). Having considered the parties’ submissions in light of this
standard, the court concludes defendant’s motion should be denied and a ruling on plaintiff’s
motion should be deferred.
Background3
It is undisputed that defendant Brady operated a beer bar in a building she rented on
a week to week basis in south Oklahoma City known as Cantina The Amazons and was the
beverage license holder for the establishment on the date of the Mayweather Fight. It also
is undisputed that plaintiff had the exclusive nationwide television distribution rights to the
Mayweather Fight and that defendant did not purchase a commercial license from plaintiff
that would have allowed her to exhibit the fight at the bar. Defendant Brady admitted that
the persons at Cantina The Amazons serving as bartenders and/or the manager acted as
agents on her behalf. She also admitted that the bar exhibits television programming that its
patrons are interested in viewing.4 In her brief Ms. Brady “denies the event was shown.”
Doc. #36, p. 6. Ms. Brady also challenges plaintiff’s assertion that she unlawfully

3

The facts are taken from the parties’ briefs, including the affidavit of Ms. Brady.

4

Not only did defendant admit that fact in her response to plaintiff’s requests for admissions,
Doc. #28-6, p. 8, the evidence she now offers to dispute it – the statement in her affidavit that she
received no financial remuneration or gain from the alleged showing of the event – fails to
controvert it.

2

intercepted and exhibited the Mayweather Fight. However, defendant offers no evidence
controverting the affidavit submitted by plaintiff demonstrating that the fight was, in fact,
exhibited at Cantina The Amazons on May 4, 2013. The evidence Ms. Brady offers is that
she, personally, “did not show the Mayweather v. Guerrero fight at the bar on the date
alleged.” Doc. #36-1, p. 2. She also attests that she “did not personally intercept a satellite
signal, aid in the interception of a satellite signal, or receive the satellite signal related to the
alleged exhibition of the event.” Doc. #36-1, p. 3 (emphasis added).5
Analysis
Plaintiff claims it is entitled to summary judgment because defendant Brady was
operating the Cantina The Amazons on May 4, 2013, when the Mayweather Fight was
unlawfully displayed. Defendant Brady claims she is entitled to summary judgment because
she did not personally show the Mayweather Fight and did not charge a cover charge at
Cantina The Amazons on the evening of the fight, and because plaintiff cannot establish that
she gained financially from the fight and has no evidence of an unauthorized exhibition.
“To establish liability under either 553 or § 605, [a] plaintiff must prove that [a]
defendant[] unlawfully exhibited, published or divulged a privileged communication and the
signal transmitting that communication was delivered to the intercepting party by way of a
satellite or cable transmission.” J & J Sports Prod., Inc. v. Aguilar, 2013 WL 425034,

5

Ms. Brady may not have had her hand on the remote control but, as is discussed
subsequently, that is not required for her to be held accountable, particularly when the Cantina The
Amazons is an unincorporated entity.

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at *1 (W.D. Okla. Feb. 1, 2013) (quoting Joe Hand Promotions, Inc. v. Kinder, 2012 WL
5494926, at *3-4 (N.D.Okla. Nov. 13, 2012)). A plaintiff does not have to establish
“willfulness” concerning the exhibition to establish liability; “the statues are strict liability
statutes.” Id.
Contrary to defendant’s assertion, plaintiff also does not have to establish that Ms.
Brady benefitted financially from the violation in order to recover. The three cases defendant
cites in support of her argument that a defendant must have “reaped commercial profit” from
the statutory violation to be held liable are Joe Hand Promotions, Inc. v. Alvarado, 2011 WL
1740536 (E.D. Cal. May 4, 2011), J & J Sports Prods., Inc. v. Daley, 2007 WL 7135707
(E.D.N.Y. Feb. 15, 2007), J & J Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648 F.Supp.
2d 469 (E.D.N.Y. Aug. 19, 2009). Those cases require only that the individual have “an
obvious and direct financial interest in the misconduct.” Alvarado, 2011 WL 1740536 at *7
(quoting 291 Bar & Lounge, 648 F.Supp.2d at 473); Daley, 2007 WL 7135707, at *3.6
Alvarado does refer to the need for the plaintiff to establish that the defendant “[h]ad control
of the television at the time of the alleged signal piracy” and “[d]erived a benefit from the
alleged signal piracy.” 2011 WL 1740536 at *7. However, a close reading of Alvarado
reveals that those are the requirements for liability urged by the defendants, not imposed by
the court. Alvarado also is not binding authority on this court.

6

Daley and 291 Bar & Lounge, LLC also involved corporate defendants, although there
appeared to be a question in Daley as to whether the establishment was a corporation or an
unincorporated entity. See Daley, 2007 WL 7135707, at *4 n.3.

4

Cases in which the issue of individual liability under §§ 605 and 553 has arisen
usually involve corporate defendants, not individuals “doing business as,” such as the
defendant in this case. See e.g., J & J Sports Prods., Inc. v. Castillo, 2014 WL 1281478 (E.D.
Ky. Mar. 27, 2014). Nonetheless, assuming that the same standard applies here, plaintiff has
made the showing required to impose personal liability on defendant Brady. It has
introduced evidence that she had the “‘right and ability to supervise’ the [claimed]
violation[],” 291 Bar & Lounge, 648 F. Supp.2d at 473 (quoting Softel, Inc., v. Dragon Med.
and Scientific Commc’ns, Inc., 118 F.3d 955, 971 (2d Cir.1997)), as she has admitted that
the persons serving at the Cantina the Amazons as the bartenders and/or the manager were
her agents. Plaintiff also has introduced evidence that Ms. Brady, as the person who leased
the building, operated the bar and held the beverage license for the establishment, had “an
obvious and direct financial interest in the misconduct.” Id.; accord DIRECTV, LLC v.
Taylor, 2014 WL 3373448, at *2 (D. Colo. July 10, 2014) (“In order to establish vicarious
liability of an individual for a violation of 47 U.S.C. § 605, the plaintiff need only show that
the individual defendant had the ‘right and ability to supervise’ the violations, and that she
had a ‘strong financial interest’ in exploiting the copyrighted materials.”). However, neither
§ 605 nor § 553 imposes a requirement of financial gain in order for a plaintiff to recover,
although the court may, in its discretion, increase the award of damages if it determines the
“violation was committed willfully and for purposes of direct or indirect commercial
advantage or privilege financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii); § 553(c)(3)(B)
While the court has concluded plaintiff has established that the Mayweather Fight was
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shown at the Cantina the Amazons on May 4, 2013, and that defendant Brady may be held
individually liable under the federal statutes, J & J has not demonstrated that it is entitled to
summary judgment. As defendant points out, plaintiff failed to establish a basic element of
its claim under either statute –the means by which the alleged piracy occurred, by use of
satellite or cable reception. See Alvarado, 2011 WL 1740536 at *7-8 (production of
evidence that telecast was shown was insufficient, plaintiff had to produce evidence
suggesting means by which telecast was intercepted). The means of the unauthorized
interception also affects the damages award, if the plaintiff is seeking statutory damages, as
J & J is here. See 47 U.S.C. §§ 553; 605.
Plaintiff waited until its response to defendant’s motion for summary judgment to
produce evidence of how the signal was pirated. Even then, what it produced was
inadmissible –unauthenticated pictures of a satellite dish on a building which appears to be
Cantina the Amazons. Doc. #40-1.7 However, rather than waste the parties’ and the court’s
time and resources litigating an issue that may not be in dispute, defendant is directed to
advise the court if she disputes that the Cantina the Amazons had a Dish Network satellite
dish on May 4, 2013, and, if so, to produce evidence to support her position within seven
days. During that seven day period the parties also are directed to discuss settlement and to
advise the court of the results of their discussion.
7

The fact that plaintiff “has already supplied Defendant not only with the Affidavit of
investigator Nicolin Deckard, but also with the photographs he took of Cantina the Amazons which
show the club’s Dish Network satellite dish,” Doc. #40, p. 2, ¶5, is irrelevant for purposes of
determining whether summary judgment is appropriate. Plaintiff has to demonstrate to the court
that no material fact questions exist.

6

As has been discussed, Ms. Brady’s asserted lack of personal involvement in the
claimed violation of the statute and asserted lack of financial benefit from the showing of the
Mayweather Fight do not preclude her liability under the statutes.

However, such

circumstances may, along with Ms. Brady’s intent, affect the damages that may be assessed
against her, if summary judgment is entered for plaintiff as to liability. Damages, if awarded,
will be assessed under §605,8 and a hearing will be required at which Ms. Brady will be
expected to testify.
Accordingly, a ruling on plaintiff’s motion for summary judgment [Doc. #27] is
DEFERRED. Defendant’s motion for summary judgment [26] is DENIED.
IT IS SO ORDERED.
Dated this 10th day of March, 2016.

8

It appears defendant intends only to offer evidence of a violation of §605. Although a
defendant’s conduct can simultaneously violate both § 553 and § 605, a plaintiff may recover under
only one of the statutory provisions. Daley, 2007 WL 7135707, at *3.

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