Purple Rabbit Music et al v. JCJ Productions, L.L.C. et al

Filing 53

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by District Judge William L. Campbell, Jr on 12/5/2019. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PURPLE RABBIT MUSIC, et al.,
Plaintiff,
v.
JCJ PRODUCTIONS, L.L.C., JACOB
TUCKER, and BRANDON TUCKER,
Defendants.

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NO. 3:18-cv-00520
JUDGE CAMPBELL
MAGISTRATE JUDGE
HOLMES

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs Purple Rabbit Music, U Rule Music, Divine Pimp Publishing, Key Club Music,
and Lellow Productions, Inc., filed this suit against Defendants JCJ Productions, LLC, Jacob
Tucker and Brandon Tucker, on June 5, 2018. (Doc. 1). The Court granted default judgment on
September 9, 2019. (Doc. 45). Plaintiffs filed an application for monetary judgment on November
8, 2019. (Doc. 50). A hearing on Plaintiffs’ application was held on November 15, 2019, and
none of the Defendants, nor anyone on their behalf, appeared at the hearing. (Doc. 51).
For the reasons discussed below, Plaintiffs’ Application for Monetary Judgment (Doc.
No. 50) is GRANTED.
I.
1.

FINDINGS OF FACT

The Plaintiffs are the owners of the copyrights in the musical works set forth in

Schedule A (the “Musical Works”) of the Amended Complaint. (Am. Compl., Doc. 17, ¶ 4 &
Schedule A, Doc. 17-1).
2.

Defendant JCJ Productions, LLC (“JCJP”) is a limited liability company

organized under the laws of Tennessee, with a principal place of business located at 1530
Demonbreun Street, Nashville, Tennessee 37203. (Doc. 17, ¶ 5).

3.

All times relevant to this lawsuit, JCJP owned, controlled, managed, operated,

and/or maintained a place of business for public entertainment, accommodation, amusement, and
refreshment known as Frisky Frogs located at 1530 Demonbreun Street, Nashville, Tennessee
37203. (Id., ¶ 6).
4.

Musical compositions were publicly performed at Frisky Frogs. (Id., ¶ 7).

5.

At all times relevant to this lawsuit, Defendants Jacob Tucker and Brandon Tucker

were members and/or principals of JCJP. (Id., ¶ 10).
6.

At all times relevant to this lawsuit, Defendants Jacob Tucker and Brandon Tucker

were responsible for the control, management, operation, and maintenance of the affairs of JCJP.
(Id., ¶ 11).
7.

Until its ultimate closure, and at all times relevant to this litigation, Defendants

jointly owned and operated Frisky Frogs. (see Defs.’ Resp. Req. Admis., Doc. 27-5, ¶ 6).
8.

Until its ultimate closure, and at all times relevant to this litigation, Defendant

Jacob Tucker, as specifically admitted to by Defendants in response to requests for admission, had
the right and ability to supervise and control the public performance of musical compositions and
to determine the music policy at Frisky Frogs. (Id., ¶ 23; see also Doc. 17, ¶ 12).
9.

Until its ultimate closure, and at all times relevant to this litigation, Defendant

Brandon Tucker, as specifically admitted to by Defendants in response to requests for admission,
had the right and ability to supervise and control the public performance of musical compositions
and to determine the music policy at Frisky Frogs. (Doc. 27-5, ¶ 24; see also Doc. 17, ¶ 12).
10.

Each Defendant derived a direct financial benefit from the public performance of

musical compositions at Frisky Frogs. (Id., ¶ 13).
11.

The Plaintiffs are all members of the American Society of Composers, Authors,

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and Publishers (“ASCAP”), a membership association that represents, licenses, and protects the
public performance rights of its members. (Decl. of John Johnson, Doc. 50-2, ¶ 4).
12.

Each ASCAP member grants to ASCAP a non-exclusive right to license the right

of public performance in that member’s copyrighted musical compositions. (Doc. 17, ¶ 15).
13.

On behalf of all of its members, ASCAP licenses the right to perform publicly all

of the millions of copyrighted songs in the ASCAP repertory, which includes the Musical Works,
collects license fees associated with those performances, and distributes royalties to its members,
less ASCAP’s operating expenses. (Doc. 50-2, ¶ 5).
14.

ASCAP licensing representatives attempt to license all restaurants, bars,

nightclubs, and similar such establishments pursuant to ASCAP’s form “General License
Agreement – Restaurants, Bars, Nightclubs, and Similar Establishments” (the “Form License
Agreement”). (Id., ¶ 10; Ex. 2 1).
15.

A form “Rate Schedule and Statement of Operating Policy” (the “Rate

Schedule”) 22 is annexed to, and incorporated by reference into, the Form License Agreement. (Id.).
16.

The Rate Schedule is updated on an annual basis to account for increases in the

Consumer Price Index, All Urban Consumers, and sets forth the various factors upon which annual
license fees for each licensed establishment are calculated. (Id., ¶ 11).
17.

The Form License Agreement for restaurants, nightclubs, and similar

establishments is a “blanket license” authorizing the licensee to play any and/or all of the works

1

The Form License Agreement is authenticated by a qualified witness pursuant to Fed. R. Evid.
901(b)(1) and is a record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc 50-2).
2

The Rate Schedules for 2016, 2017, and 2018 are attached to the Declaration of John Johnson as
Exhibits 3 through 5, are authenticated by a qualified witness pursuant to Fed. R. Evid. 901(b)(1) and are a
record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc. 50-2).

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in the ASCAP’s repertory in consideration for payment of an annual license fee. (Id., ¶ 12).
18.

ASCAP’s dealings with the Defendants began in December 2016. (Doc. 17, ¶ 16;

see also Doc 50-2, ¶ 15 3).
19.

Since December 2016, ASCAP licensing representatives repeatedly warned

Defendants about the consequences of performing ASCAP’s members’ music works without
proper authorization and attempted to offer an ASCAP license agreement for Frisky Frogs. (Doc.
17, ¶ 16; Doc. 50-2, ¶ 16; Doc. 27-5, ¶ 7).
20.

Since December 2016, ASCAP licensing representatives have made more than

eighty (80) attempts to contact the Defendants, their representatives, agents, or employees, to offer
an ASCAP license for Frisky Frogs. (Doc. 50-2, ¶ 16). These attempted contacts have been made
by telephone, by mail, by email, and in-person. (Id.).
21.

At all times relevant, the license fees for Frisky Frogs quoted to the Defendants

by ASCAP representatives were derived from ASCAP’s uniform Rate Schedules used to compute
license fees for similarly situated establishments. (Id., ¶ 19 & Exs. 3, 4, 5).
22.

After multiple telephone contacts, Defendant Jacob Tucker agreed to an in-person

meeting with an ASCAP representative on the morning of March 6, 2017, but he failed to show
up for the scheduled meeting. (Id., ¶ 16 & Ex. 6).
23.

Over the ensuing six (6) months after Defendant Jacob Tucker failed to appear for

the scheduled meeting, eighteen (18) telephone calls were made to Frisky Frogs, which included
telephone conversations with Frisky Frogs representatives including Defendant Jacob Tucker and
consistently resulted in unreturned phone calls or general avoidance efforts. (Id.).

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Factual findings regarding ASCAP’s dealings with Defendants that are set forth in the Declaration
of John Johnson (Doc. 50-2) are based on information contained in a file on Frisky Frogs which was created
and is maintained by ASCAP. The file is authenticated by a qualified witness pursuant to Fed. R. Evid.
901(b)(1) and is a record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc 50-2).

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24.

On February 3, 2018, an independent investigator was hired by ASCAP to visit

Frisky Frogs to take notes regarding the musical entertainment at Frisky Frogs and the songs
performed during the visit. (Id., ¶ 22).
25.

According to the investigator’s report, the songs performed at Frisky Frogs on

February 3, 2018, included the Musical Works. (Id., ¶ 22 & Ex. 8 4).
26.

On February 3, 2018, there were three forms of musical entertainment performed

at Frisky Frogs: a live band, piped in music, and a disc jockey. (Id.; see also Doc. 27-5, ¶¶ 13, 14).
27.

On February 3, 2018, Defendants did not have an ASCAP license for Frisky Frogs.

(Doc. 27-5, ¶ 11).
28.

Frisky Frogs was open to the public on February 3, 2018. (Id., ¶ 12).

29.

Frisky Frogs is believed to have ceased operations in or around December 2018.

(Doc. 50-2; Doc. 50-3, ¶ 8).
30.

Despite repeated reminders of their liability under the United States Copyright

Law, Defendants continued to present public performances of the copyrighted musical
compositions of ASCAP members at Frisky Frogs, without permission, for the entertainment of
their patrons. (Doc. 50-2, ¶ 18).
31.

Based on the Rate Schedule, the prorated license fees “saved” or “avoided” by

Defendants is $9,297.33. (Doc. 50-2, ¶¶ 20 through 23).
32.

Plaintiffs commenced this action on June 5, 2018. (see Doc. 1).

33.

Defendants failed to answer the Complaint by the deadline to do so, and

Plaintiffs accordingly filed a motion for default on July 18, 2018. (Docs. 9-11).
34.

Defendants eventually answered the Complaint on July 31, 2018. (Doc. 14).

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The investigator’s report is authenticated by a qualified witness pursuant to Fed. R. Evid. 901(b)(1),
and is a record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc. 50-2).

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35.

The Plaintiffs filed an Amended Complaint on August 15, 2018. (Doc. 17).

36.

Defendants filed an answer to the Amended Complaint on October 5, 2018,

which answer generally denied any copyright infringement. (Doc. 20).
37.

Plaintiffs served Defendants with requests for admission on October 25, 2018.

(Doc. 50-3, ¶ 5).
38.

Defendants served responses to Plaintiffs’ requests for admission on November

26, 2018. (Id.; see also Doc. 27-5).
39.

In response to specific requests for admission regarding Plaintiffs’ ownership of

the involved copyrights and defendants’ lack of permission to perform specific copyrighted
material on specific dates, Defendants recited “lack of knowledge or information,” indicating a
“lack of knowledge” as to whether they received permission from the Plaintiffs to perform the Musical
Works. (Id.).

40.

Defendants’ responses to Plaintiffs’ requests for admission reflect a continuation

of a deliberate course of evasive conduct on the part of the Defendants. (Id.).
41.

Counsel for the Plaintiffs and former counsel of record for the Defendants

appeared for a telephone case management conference on January 30, 2019, during which
Defendants’ former counsel was directed to remind his clients about the case management
deadlines that were in place at that time. (See Doc. 23 at n.2).
42.

On February 4, 2019, former counsel of record for Defendants filed a motion to

withdraw. (Doc. 24). Attached to this motion is a letter to Defendants from their former counsel
notifying them of his intention to withdraw and reciting his numerous unsuccessful efforts to
discuss with them pending deadlines and discovery deficiencies. (Doc. 24-1). Also attached to the
motion is an email from Defendant Jacob Tucker, advising Defendants’ former counsel that
Defendants wish to terminate his services based on their intention “to go in a different direction.”

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(Doc. 24-2).
43.

The motion to withdraw was granted. (Doc. 25).

44.

Defendants were given time to retain new counsel, and JCJ was expressly

admonished that its failure to retain counsel would be grounds for default because it cannot appear
pro se. (Doc. 25).
45.

On February 14, 2019, Plaintiffs filed a motion to compel discovery and for other

relief. (Doc. 27).
46.

Because the time for Defendants to retain new counsel had not yet expired at that

time, the Court, by order entered on February 15, 2019, allowed Defendants until March 15,
2019, to respond to Plaintiffs’ motion to compel, and warned Defendants that failure to timely
respond could result in sanctions, including any of those permitted by Rule 16(f) and Rule 37.
(Doc. 28).
47.

Defendants did not respond to Plaintiffs’ motion to compel by March 15, and no

attorney entered an appearance on behalf of any of the Defendants before the deadline established
by the Court. (Doc. 29).
48.

On March 30, 2019, the Court entered an order granting Plaintiffs’ motion to

compel and directed Defendants to provide full and complete responses to Plaintiffs’ discovery
requests no later than April 10, 2019. (Doc. 30).
49.

In the March 30 order, Defendants were again warned that failure to provide

discovery could result in a default judgment. (Id. at PageID # 135).
50.

The March 30 order was returned to the Court as undeliverable to Defendants.

(Docs. 31, 32, 39). However, this order was not the first time Defendants had been notified that
failing to comply with the Court’s orders could result in default. (See Docs. 25, 28).

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51.

The individual Defendants were expressly ordered to notify the Court if they

intended to proceed pro se. (See Doc. 25). The Defendants never provided the Court with such
notice, nor did they provide the Court with an up-to-date mailing address. (See Doc. 40 at fn. 7).
52.

The Defendants never served responses to Plaintiffs’ first set of interrogatories

and requests for production. (Docs. 33, 34).
53.

The Plaintiffs filed a motion for default judgment and attorneys’ fees and costs

(Id.), which this Court granted by order dated September 9, 2019 (Doc. 45), wherein it adopted
and approved the Magistrate’s Report and Recommendation (Doc. 40).
54.

On November 8, 2019, Plaintiffs filed an application for monetary judgment and

injunctive relief. (Doc. 50). In support of this application, Plaintiffs also filed the Declaration of
John Johnson (Doc. 50-2) and the Affidavit of Blakeley D. Matthews (Doc. 50-3).
55.

Plaintiffs have elected to seek statutory damages pursuant to 17. U.S.C. §

504(c)(1). (Docs. 17, 50, 51).
II.

CONCLUSIONS OF LAW

A. Liability
A default constitutes an admission of all well-pleaded factual allegations in the complaint
and the allegations as they pertain to liability are deemed true. Realsongs, Universal Music Corp.,
et al. v. 3A North Park Avenue Rest. Corp., et al., 749 F. Supp. 2d 81, 85 (E.D.N.Y. 2010) (citing
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert.
denied, 506 U.S. 1080, 113 S.Ct. 1049, 122 L.Ed.2d 357 (1993)). A default judgment entered on
the well-pleaded allegations in the complaint establishes a defendant’s liability. Id.
JCJP is directly liable to the Plaintiffs for copyright infringement. Liability for direct
infringement arises from the violation of any one of the exclusive rights of a copyright owner. Id.;

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see also 17 U.S.C. § 501(a). The owner of copyright has the exclusive rights to and to authorize
others to reproduce, distribute, perform publicly, or perform by means of digital audio transmission
the copyrighted work. Id.; see also 17 U.S.C. § 106. Here, the pleadings establish that each of the
Plaintiffs to this lawsuit secured the exclusive rights and privileges and to the copyright of certain
musical works. The report of the independent investigator establishes that four of these works
whose copyrights belong to the Plaintiffs were performed publically at Frisky Frogs, an
establishment owned, controlled, managed, operated and/or maintained by JCJP. JCJP never
obtained permission or authorization to perform such works. Accordingly, JCJP is a direct
infringer.
Defendants Jacob Tucker and Brandon Tucker are both individually and personally liable
for copyright infringement through the theory of vicarious infringement. “[A]ny individual,
including a corporate officer, who has the ability to supervise infringing activity and has a financial
interest in that activity, or who personally participates in that activity, is personally liable for that
infringement.” Realsongs, 749 F. Supp. 2d at 86. Defendants Jacob Tucker and Brandon Tucker
had the right and ability to supervise and control the activities, including the right to supervise and
control the public performance of music works, at Frisky Frogs, and they derived a direct financial
benefit from the public performance of musical works at Frisky Frogs. They are accordingly
vicariously liable to the Plaintiffs for the copyright infringement that took place at Frisky Frogs.
B. Statutory Damages
Federal law provides for the recovery of damages by a copyright owner whose works have
been infringed. 17 U.S.C. § 504. The Copyright Act (17 U.S.C. 504(c)(1)) provides that:
[T]he copyright owner may elect . . . to recover, instead of actual
damages and profits, an award of statutory damages for all
infringements involved in the action, with respect to any one
work, for which any one infringer is liable individually, or for

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which any two or more infringers are liable jointly and severally,
in a sum of not less than $750 or more than $30,000 as the court
considers just.
For infringements found to be willful, the Court has the discretion to award damages of up
to $150,000.00 per work infringed. 17 U.S.C. § 504(c)(2). Plaintiffs claim that Defendants’
infringements were committed willfully and have elected to recover statutory damages.
1. Willfulness
For an infringement to be found willful, it must be done with knowledge that the conduct
constitutes infringement. See Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 584
(6th Cir. 2007). Willfulness may be proved by showing that a defendant had actual or constructive
knowledge that it was infringing the plaintiff’s copyright, or by showing that the defendant acted
in reckless disregard of the high probability that it was infringing plaintiff’s copyright. See Tenn.
Walking Horse Breeders’ and Exhibitors’ Ass’n v. Nat’l Walking Horse Ass’n, 528 F. Supp.2d
772, 780 (M.D. Tenn. 2007).
The Court finds that Defendants’ infringement of Plaintiffs’ copyrights in this case was
willful. Defendants failed to respond to—and at times actively dodged—over eighty attempts made
by ASCAP to contact Defendants, their representatives, agents, or employees, in an effort to
remind them of their obligations under federal copyright law and to warn them that unauthorized
performances would constitute copyright infringement. Significantly, from December 2016, when
ASCAP first began notifying Defendants of their infringement, until December 2018, when Frisky
Frogs is believed to have ceased operations, Defendants brazenly continued to feature public
performances of copyrighted music at Frisky Frogs, including the works involved in this lawsuit.
Even after the initiation of this lawsuit, Defendants still refused to obtain an ASCAP license and
engaged in dilatory tactics, inter alia: (i) failing to cooperate with discovery (ii) failing to cooperate

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with their own counsel, which ultimately led the Court to grant their counsel’s motion to withdraw;
and (iii) failing to comply with scheduling and other orders. Indeed, around the same time that
Frisky Frogs ceased operations, Defendants demonstrated a complete refusal to participate in this
litigation. The Court may infer that Defendant willfully infringed Plaintiffs’ copyrights because of
Defendants’ default and failure to obey Court Orders in this action. Arista Records, Inc. v. Beker
Enterprises, Inc., 298 F. Supp. 2d 1310, 1313 (S.D. Fla. 2003). Defendants demonstrated a
complete and reckless disregard for the high probability that their conduct was infringing on
Plaintiffs’ rights. Their conduct both prior to and after the commencement of this lawsuit is a
glaring example of willful infringement.
2. Amount of Statutory Damages Awarded
The Copyright Act affords the trial court wide discretion in setting the amount of statutory
damages. See, e.g., Zomba Enters., 491 F.3d at 586-87. Many factors influence an award of
statutory damages for copyright infringement, including the expenses saved and the profits
earned by the defendant, the revenues lost by the plaintiff, the deterrent effect, if any, that such an
award will have on the defendant and on third parties, the cooperation of the defendant in providing
evidence concerning the value of the infringing material, the defendant’s state of mind, and the
conduct and attitudes of the parties. Peer Int’l, 909 F.2d at 1336.
In cases involving unlicensed public performances of copyrighted music, such as the case
at bar, “courts have held that, in order to put such infringers on notice that it costs less to obey the
copyright laws than to violate them, a statutory damage award should significantly exceed the
amount of unpaid license fees.” Broadcast Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp.
656, 659-660 (S.D.N.Y. 1996) (emphasis added) (internal quotations and citations omitted). In
other words, statutory damages are designed not solely to compensate the copyright owner for

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losses incurred, but also to deter future infringement. Johnson v. Jones, 149 F.3d 494, 504 (6th Cir.
1998).
Here, as set forth above, the Court has found that Defendants’ infringing conduct was
clearly willful. The Plaintiffs have requested an award of $10,000 per infringement for a total
award of $40,000, which is well within the range of statutory damages allowed under 17 U.S.C.
§ 504(c)(1). In light of the foregoing, the Court finds that Plaintiffs are entitled to an award of
$10,000 for each of the four compositions, or a total of $40,000 in statutory damages, as a result
of Defendants’ willful infringement. Further, because the infringement in this case flowed from
the joint willful conduct of all of the Defendants, their liability for the awarded damages shall be
joint and several. See Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d. 1110, 1116 (2d Cir.
1986) (two or more copyright infringers may be held jointly and severally liable for statutory
damages where the infringement flowed from joint action of the infringers).
C. Permanent Injunction
Plaintiffs are also entitled to injunctive relief prohibiting Defendants Jacob Tucker and
Brandon Tucker from publicly performing works in the ASCAP repertory in the future without
first obtaining proper authorization to do so. A court may issue an injunction on a motion for
default provided that the moving party shows that (1) it is entitled to injunctive relief under the
applicable statute and (2) it meets the prerequisites for the issuance of an injunction. Realsongs,
749 F. Supp. 2d at 93. Section 502(a) of the Copyright Act provides:
Any court having jurisdiction of a civil action arising under this
title may…grant temporary and final injunctions on such terms as
it may deem reasonable to prevent a restrained infringement of a
copyright.
17 U.S.C. § 502(a). Accordingly, the moving party must establish that (1) absent injunctive relief,
it will suffer irreparable harm, and (2) actual success on the merits. Realsongs, 749 F. Supp. 2d at

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93.
In order to make out a prima facie case of copyright infringement, “a party must establish
ownership of a valid copyright and that the defendant violated an exclusive right conferred by the
ownership.” Id. In the case at bar, the Plaintiffs are the copyright owners to the musical works at
issue and have established by proof that Defendants used the copyrighted musical works without
the proper permission or authority to do so on February 3, 2018. Accordingly, Plaintiffs have
established actual success on the merits.
Irreparable harm is presumed where a party has established a prima facie case of copyright
infringement. Id. Moreover, it is clear from the record that Defendants have no intention of
following the law and will likely continue to violate Plaintiffs’ copyrights absent an injunction.
This is exacerbated by the Defendants’ conduct throughout this litigation – most
significantly being their ultimate complete refusal to participate in this action after Frisky Frogs
ceased operations.
III.

CONCLUSION

The Court awards Plaintiffs statutory damages in the amount of $40,000 for Defendants’
willful infringement of Plaintiffs’ copyrights and permanently enjoins Defendants from
performing any songs in the ASCAP repertory in the future without first obtaining proper
authorization to do so. The Court also awards Plaintiffs all attorneys’ fees and costs, pursuant
to 17 U.S.C. § 505. A separate order will enter.

_______________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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