Broadcast Music, Inc. et al v. Its Amore Corp. et al

Filing 40

MEMORANDUM and ORDER denying 37 Motion for Reconsideration Signed by Honorable James M. Munley on 8/13/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BROADCAST MUSIC, INC., HARRICK MUSIC, INC., EMI VIRGIN SONGS, INC., d/b/a EMI Longitude Music, STONE DIAMOND MUSIC CORPORATION , MICHAEL JOE JACKSON, d/b/a MiJac Music, DIMENSIONAL MUSIC PUBLISHING, LLC, d/b/a Songs of the Knoll, LOWERY MUSIC COMPANY, INC., WARNER-TAMERLANE PUBLISHING CORP., CAN'T STOP MUSIC, a division of Can't Stop Productions, Inc., JAMES W. BUFFETT, d/b/a Coral Reefer Music, FOURTEENTH HOUR MUSIC, INC., SPRINGTIME MUSIC, INC., CHRYSALIS STANDARDS, INC., SONY/ATV SONGS, LLC, d/b/a Sony/ ATV Acuff Rose Music, ROY KELTON ORBISON, JR., d/b/a R-Key Darkus Publishing, ALEXANDER ORBISON, d/b/a OrbiLee Publishing, BARBARA ORBISON as Trustee, d/b/a Barbara Orbison Music Company, MUSCLE SHOALS SOUND PUBLISHING CO., INC., RANDOR MUSIC INTERNATIONAL, INC., d/b/a Irving Music, FORT KNOX MUSIC, INC., TRIO MUSIC CO., INC., G. LOVE, a/k/a Garret Dutton, d/b/a : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : No. 3:08cv570 (Judge Munley)

Chicken Platters, Plaintiffs

: : : v. : : IT'S AMORE CORP., : T & M DRAM CORP., : ALEXANDER J. TARAPCHAK, and : VINCE MARINARO, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is defendants' motion for reconsideration (Doc. 37). Having b e e n briefed, the matter is ripe for disposition. B a c k g ro u n d T h is case arises out of copyright infringement claims brought by the plaintiffs a g a in s t the defendants, who operated a restaurant in South Abington Township, P e n n s ylv a n ia . The alleged infringement came through the performance of twentyth re e songs at the restaurant on October 6 and 7, 2007. Plaintiffs filed a complaint, a n d the parties engaged in discovery. At the close of discovery, plaintiffs filed a m o tio n for summary judgment. On June 30, 2009, the court issued a memorandum a n d order granting the plaintiffs' motion for summary judgment and awarding p la in tiffs $34,500 in damages and $28,455 in costs and attorney's fees. (See Doc. 3 5 ) . On July 9, 2009, defendants filed the instant motion for reconsideration. (Doc. 3 7 ). The parties then briefed the issue, bringing the case to its present posture.

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J u r i s d ic t i o n A s this case is brought pursuant to the Copyright Act, 17 U.S.C. § 101, et s e q ., the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts s h a ll have original jurisdiction of all civil actions arising under the Constitution, laws, o r treaties of the United States."). Legal Standard D e fe n d a n ts move for reconsideration of this court's decisions granting s u m m a r y to the plaintiffs. "The purpose of a motion for reconsideration is to correct m a n ife s t errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 799 F.2d 906, 909 (3d Cir.1985); Max's Seafood Cafe ex rel. Lou-Ann, In c . v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The movant must demonstrate o n e of three grounds for such a motion to be granted: (1) an intervening change in c o n tro llin g law; (2) the availability of new evidence not previously available; or (3) the n e e d to correct a clear error of law or to prevent manifest injustice. Max's Seafood C a fe , 176 F.3d at 677. A motion for reconsideration is not a proper vehicle merely to attempt to convince the court to rethink a decision it has already made. Glendon E n e rg y Co. v. Borough of Glendon, 836 F. Supp.1109, 1122 (E.D. Pa. 1993). Such m o tio n s may not be used to give a dissatisfied party a chance to "[change] theories a n d try again," and thus obtain a "`second bite at the apple.'" Bhatnagar v. Surrendra O ve rs e a s Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995); see also Ogden v. Keystone R e s id e n c e , 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002) (finding that "The simple fact 3

th a t Ogden is unhappy with the result of the April 19, 2001 opinion is an insufficient b a s is to grant her relief."). D i s c u s s io n D e fe n d a n ts raise several grounds for relief in their motion. The court will a d d re s s each in turn. i. Existence of a Valid License D e fe n d a n ts argue that court erred in concluding that they lacked a valid p e r fo r m a n c e license for the musical compositions in question, and manifest injustice w o u ld occur if the court awarded damages when defendants had a license to p e rfo rm the compositions. In dispute in this case was whether defendants had s e c u re d permission to perform the various compositions that were the subject of the la w s u it. United States copyright law "[vests] in the owner of a copyrighted musical c o m p o s itio n the exclusive right to perform the work publicly for profit, but the legal rig h t is not self-enforcing." Broadcast Music, Inc. v. Columbia Broadcasting System, Inc ., 441 U.S. 1, 4 (1979). Organizations like Broadcast Music, Incorporated ("BMI") (a plaintiff in this case) and the American Society of Composers and Producers ("A S C A P ")­ fro m whom defendants claim to possess a license­exist to detect in a p p ro p ria te uses of copyrighted material and enforce the rights of copyright o w n e rs . Id. To prove copyright infringement in the performance context, a plaintiff m u s t demonstrate: "(i) the originality and authorship of the composition involved; (ii) c o m p lia n c e with all formalities to secure copyright; (iii) that the plaintiff is the 4

p ro p rie to r of the composition involved in the action, (iv) that the composition was p e rfo rm e d publicly for profit at the location alleged; and (v) that the defendant did not h a ve permission from any of the plaintiffs or a representatives [sic] of the plaintiffs for th e performance." A & N Music Corp. v. Venezia, 773 F. Supp. 955, 956 (E.D. Pa. 1 9 9 0 ). Though they do not explain how this evidence was unavailable at the time of th e court's initial decision, defendants submit information from ASCAP sources w h ic h they claim indicates that they had licenses to perform twenty of the twentyth r e e compositions for which the court found infringement. Defendants also insist th a t their ASCAP license­purchased after the violations occurred­was retroactively e xte n d e d to cover October 6 and 7, 2007.1 The court's conclusion that a violation o c c u rr e d , defendants therefore claim, was clear error and reconsideration is a p p r o p r ia te . E v e n if the court were to conclude that defendants possess an ASCAP license th a t extends retroactive protection to October 6 and 7, 2007, the court would still find th a t defendants lacked clearance to perform the compositions that are the basis for th is lawsuit. Defendants' motion contains an extensive appendix which purports to p ro ve that the ASCAP license covered twenty of the songs that defendants infringed. That evidence proves no such thing. The defendants provide a series of print-outs

There is no dispute, however, that defendants did not possess a license of any sort when the violations actually occurred. They purchased that license at a later date, from ASCAP, not BMI. 5

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fro m the ASCAP website which list compositions the company controls by title. (See A p p e n d ix 1 to Plaintiff's Motion (Doc. 37-1)). Many of the titles of those songs are the same or similar to the titles in question here. None of those titles, however, were w ritte n by the composer whose rights BMI seeks to protect. Defendants' filing, for in s ta n c e , indicates that ASCAP protects twenty-seven songs that bear the title "B ro w n Sugar." None of these titles include a composition by Mick Jagger and Keith R ic h a rd s .2 Since the copyright claim was for the song written by these two men, e vid e n c e that defendants may have had permission to perform other songs with the s a m e title does not excuse their infringement of the song. Copyright law, after all, is d e s ig n e d to protect the composition and the composer, not the title. The court will d e n y the motion on this point. ii. Individual Liability of Alexander Tarapchak, III Defendants also argue for reconsideration of the court's conclusion that D e fe n d a n t Alexander Tarapchak knowingly violated plaintiffs' copyrights because he h a d been informed that such performances were infringing and allowed p e rfo rm a n c e s to continue. Moreover, the court found that as President and Owner o f the corporation that controlled the business, he had the ability to countenance or

Defendants have refined their argument somewhat from the summary-judgment stage. Previously, defendants had insisted that possessing an ASCAP license cleared performance of all the songs in question, but did not attempt to demonstrate that the license they possessed (after the fact) actually cleared the songs about which plaintiffs complained. They attempt to do so now, but only by claiming that their license covers similar song titles, not the actual songs at issue here. Since the copyright is in the composition, not the title, defendants' argument is unavailing. 6

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p ro h ib it the infringing practices. The court rejected Tarapchak's argument that his fa ile d attempts to negotiate a license with BMI are evidence that he did not k n o w in g ly violate the plaintiffs' copyrights. Tarapchak made all of the arguments a d va n c e d in the instant motion in his brief in opposition to plaintiffs' summary ju d g m e n t motion. The court rejected them. The purpose of a motion for re c o n s id e ra tio n is not to repeat old arguments and convince the court to come to a d iffe re n t conclusion, and the court will deny the motion on this point as well. iii. Calculation of the License Fees T h e defendants also challenge the damages that the court awarded the p la in tiffs . Defendants insist that the court erred in providing damages based on the va lu e of a BMI license as provided by the plaintiffs, contending that BMI's c a lc u la tio n s of seating capacity in the restaurant were faulty and the court should not h a v e used them. Defendants contend that the court should have used a license a p p lic a tio n they submitted to BMI as the basis for calculating the value of the lic e n s e , not BMI's figures. Defendants here provide no basis for reconsidering the c o u rt's decision. The court had the license application and defendants' claims about e rro rs in seating capacity in BMI's proposed license before it when deciding on the a m o u n t of damages, and concluded that defendants' willful conduct justified an a w a rd of $1,500 per violation, or twice the statutory minimum.3 The court found the

Plaintiffs sought $3,000 per violation in damages. The court considered the purpose of damages, the nature of the violations and the economic situation of the defendants in providing a lower amount in damages. 7

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in frin g e m e n t deliberate and used BMI's calculation of the cost of a license as part of th e basis for the damages award. Evidence that defendants believed the license s h o u ld have been less costly does not alter the fact that defendants knowingly vio la te d the copyright and were liable for an award the reflected the nature of their c o n d u c t. In any case, defendants' disagreement with the court's conclusion is not a va lid basis for reconsideration. As such, the court will deny the motion on these g ro u n d s as well. C o n c l u s io n F o r the reasons state above, the court will deny the motion for re c o n s id e r a tio n . An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BROADCAST MUSIC, INC., HARRICK MUSIC, INC., EMI VIRGIN SONGS, INC., d/b/a EMI Longitude Music, STONE DIAMOND MUSIC CORPORATION , MICHAEL JOE JACKSON, d/b/a MiJac Music, DIMENSIONAL MUSIC PUBLISHING, LLC, d/b/a Songs of the Knoll, LOWERY MUSIC COMPANY, INC., WARNER-TAMERLANE PUBLISHING CORP., CAN'T STOP MUSIC, a division of Can't Stop Productions, Inc., JAMES W. BUFFETT, d/b/a Coral Reefer Music, FOURTEENTH HOUR MUSIC, INC., SPRINGTIME MUSIC, INC., CHRYSALIS STANDARDS, INC., SONY/ATV SONGS, LLC, d/b/a Sony/ ATV Acuff Rose Music, ROY KELTON ORBISON, JR., d/b/a R-Key Darkus Publishing, ALEXANDER ORBISON, d/b/a OrbiLee Publishing, BARBARA ORBISON as Trustee, d/b/a Barbara Orbison Music Company, MUSCLE SHOALS SOUND PUBLISHING CO., INC., RANDOR MUSIC INTERNATIONAL, INC., d/b/a Irving Music, FORT KNOX MUSIC, INC.,
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: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

No. 3:08cv570 (Judge Munley)

TRIO MUSIC CO., INC., G. LOVE, a/k/a Garret Dutton, d/b/a Chicken Platters, Plaintiffs

: : : : : v. : : IT'S AMORE CORP., : T & M DRAM CORP., : ALEXANDER J. TARAPCHAK, and : VINCE MARINARO, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 13th day of August 2009, the defendants' motion for re c o n s id e ra tio n (Doc. 37) is hereby DENIED.

B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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