Broadcast Music, Inc., et al v. Bentley, et al
ORDER GRANTING 22 Motion for Summary Judgment. Signed by Judge Xavier Rodriguez. (rg)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
BROADCAST MUSIC, INC., ET AL.,
CATHERINE LIANZA BENTLEY,
individually and d/b/a LONGBRANCH
LOUNGE a/k/a, LONGBRANCH
' Civil Action No. SA-16-CV-394-XR
On this date, the Court considered Plaintiffs’ Motion for Summary Judgment (docket no.
22). No response has been filed. After careful consideration, the Court will GRANT the motion.
Plaintiff Broadcast Music, Inc. (“BMI”) and others initiated this lawsuit by filing a
complaint on April 25, 2016, against Defendant Catherine Lianza Bentley individually and d/b/a
Longbranch Lounge or Longbranch Saloon (“Defendant”), alleging Defendant infringed the
copyrights of twelve musical compositions at Defendant’s business, Longbranch Saloon, located
at 817 N. Main, Boerne, Texas. Docket no. 1 at 12. BMI has been granted the right to license
the public performance rights to musical compositions from numerous musicians and composers
in its repertoire. Docket no. 22 at 2. BMI issues licenses to bars, restaurants, hotels and other
establishments granting these establishments the right “to publicly perform a repertoire of 10.5
million copyrighted musical works on behalf of the copyright owners of these works.” Id. BMI
alleges Defendant committed copyright infringement by performing or causing to be performed
at Longbranch Saloon, without a license, twelve separate musical compositions contained in
BMI’s repertoire. The other plaintiffs “are the copyright owners of each of the twelve individual
musical compositions” that form the basis for this lawsuit. Id. at 2. Plaintiffs now seek summary
judgment, including statutory damages, costs, reasonable attorney’s fees, and a permanent
injunction. Docket no. 22-1 at 6–7.
According to the undisputed summary judgment evidence, Defendant previously held the
required license that permitted her to perform music from BMI’s repertoire at the Longbranch
Saloon, but the license was cancelled in 2007.
Id. at 3.
After Defendant’s license was
terminated, BMI sent Defendant multiple letters beginning on January 24, 2007, informing her
that her license expired and emphasizing the possibility of litigation if she performed BMIlicensed musical compositions without the required license. Docket no. 22-5 at 2. BMI sent a
total of 32 letters between May 2011 and July 2014 and made numerous telephone calls to
Defendant, informing her of the applicable copyright law and requesting that Defendant renew
her license. Docket no. 22-1 at 3. Defendant did not respond to any of BMI’s letters during this
time period and never renewed her license. Id.
On March 30, 2012, BMI sent Defendant a cease and desist notice, demanding that she
“immediately cease all use of BMI-licensed music” at her establishment. Docket no. 22-5 at 15.
BMI then sent fifteen follow-up letters reminding Defendant that the cease and desist notice
remained in full effect.
Id. at 16–30.
Defendant did not respond to any of BMI’s
correspondence concerning the March 30, 2012 cease and desist notice and did not renew her
license with BMI.
On June 13, 2014, a BMI investigator visited Defendant’s establishment. Docket no. 221 at 3. The BMI investigator made audio recordings of the music that Defendant performed, or
caused to be performed at her establishment. Id. The investigator turned the recordings over to
BMI’s audio experts. Id. The audio experts concluded that Defendant performed, or caused to
be performed, twelve separate musical compositions from BMI’s repertoire, without a license, on
the evening of June 13, 2014. Id.
After concluding Defendant performed music from the BMI repertoire without a license,
BMI sent Defendant a letter informing her that performing music from the BMI repertoire
without a license infringes on BMI’s copyright. Docket no. 22-5 at 31. In the letters to
Defendant, BMI outlined the steps Defendant could take to renew her license, which would
allow Defendant to perform musical compositions from the BMI repertoire at Defendant’s
establishment under the terms of the licensing agreement. Id.
As noted, Plaintiffs then filed this lawsuit in April 2016. On August 11, 2016, Plaintiffs
filed a Motion for Default Judgment against Defendant. Docket no. 17 at 1. They argued that
because Defendant’s answer was due on June 2, 2016, and no response from Defendant had been
filed, Plaintiffs were entitled to a default judgment. Id. at 2. Defendant answered on September
6, 2016. Docket no. 21 at 1. In her answer, she admits many of Plaintiffs’ allegations, but she
denies that she performed, or caused to be performed, the listed musical compositions at her
establishment. Docket no. 21 at 1–3. As a result of Defendant’s September 6, 2016 Answer, this
Court dismissed the Motion for Default Judgment as moot. On October 24, 2016, Plaintiffs filed
a Motion for Summary Judgment against Defendant on all claims.
Docket no. 22 at 1.
Defendant has not filed a response to Plaintiffs’ Motion for Summary Judgment.
APPLICABLE LEGAL STANDARD
Summary judgment should be rendered if the pleadings, discovery and disclosure
materials on file, and any sworn affidavits show no genuine issues of material fact exist, and that
the movant is entitled to summary judgment as a matter of law. FED. R. CIV. P. 56(C). The
moving party bears the initial burden of “informing the Court of the basis of its motion” and
identifying those portions of the record that “it believes demonstrate the absence of a genuine
issue of material fact.” Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). Once
the moving party meets this burden, the nonmoving party must “go beyond the pleadings” and
designate “specific facts” in the record “showing that there is a genuine issue for trial.” Id. at
If the nonmoving party fails to offer evidence supporting or addressing a fact issue, the
court may “grant summary judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it[.]” FED. R. CIV. P. 56(e)(3).
When considering unopposed motions for summary judgment, a court may not grant
summary judgment solely because the motion is unopposed. FED. R. CIV. P. 56(e)(3); see also
Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.
1985) (“A motion for summary judgment cannot be granted simply because there is no
opposition, even if the failure to oppose violated a local rule.”). However, if a nonmoving party
fails to address or respond to a fact raised by the moving party and supported by evidence, then
the court may consider the fact as undisputed. FED. R. CIV. P. 56(e)(2). Such undisputed facts
may form the basis for a summary judgment.
Elements of Public Performance Copyright Infringement
A copyright owner holds the exclusive right to publicly perform copyrighted material “by
means of digital audio transmission.” 17 U.S.C. § 106(4), (6). In order to prevail in a copyright
infringement suit where the plaintiff claims the defendant publicly performed plaintiff’s
copyrighted musical works without authorization, the plaintiff must prove five elements: “(1)
originality and authorship of the copyrighted works involved; (2) compliance with the formalities
of the Copyright Act; (3) proprietary rights in the copyrighted works involved; (4) public
performance of the compositions involved; and (5) lack of authorization for public
performance.” Broadcast Music, Inc. v. Neath Abbey Corp., Ltd., No. 5:12-CV-146-C, 2014 WL
12577583, at *2 (N.D. Tex. Apr. 15, 2014).
A. Originality and Authorship of Copyrighted Musical Compositions
Defendant admits to the originality and authorship of the copyrighted musical
compositions that form the basis of this suit. Docket no. 21 at 1–3. BMI acts on behalf of the
original composers and proprietors of the copyrighted musical compositions that form the basis
for this cause of action. Docket no. 22-6 at 2. BMI acquired the right to act on behalf of the
original composers of the twelve musical compositions when the composers placed their original
musical compositions in the BMI repertoire. Id. Once a musical composition is in the BMI
repertoire, BMI has the right to grant licenses on behalf of the composers and pursue copyright
infringement claims against anyone who performs copyrighted musical compositions without a
license. Plaintiffs satisfy the first element of the cause of action.
B. Compliance with Formalities of the Copyright Act
Defendant admits that Plaintiffs complied with the formalities of the Copyright Act.
Docket no. 21 at 1–3. In a suit for copyright infringement, the proper registration of the
copyrighted material “constitute[s] prima facie evidence of the validity of the copyright and the
facts stated in the certificate.” 17 U.S.C.A § 410(c). Plaintiffs produced evidence showing
compliance with federal regulations and formalities required by the United States Copyright
Office. Docket no 1-1 at 2–6. See Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir. 1991)
(“[A] plaintiff has complied with the statutory formalities when the Copyright Office receives
the plaintiff's application for registration, fee and deposit.”).
This evidence includes the
copyright registration number and the date of copyright for each of the twelve works performed
at Defendant’s establishment on June 13, 2014. Docket no 1-1 at 2–6. The evidence also
includes an affidavit from attorney John Elwood, in which Elwood states that the rights to the
musical compositions that form the basis for this dispute were properly registered with the
United States Copyright Office.
Docket no. 22-6 at 2.
Plaintiffs’ evidence demonstrates
compliance with federal copyright regulations and therefore satisfies the second element of the
cause of action.
C. Proprietary Rights to the Copyrighted Musical Compositions
Defendant further admits that Plaintiffs have proprietary rights to the copyrighted musical
compositions in this suit. Docket no. 21 at 1–3. BMI states that it possesses the right to license
the twelve pieces of musical composition in this suit. Docket no. 22-1 at 5. BMI’s proprietary
right to the musical compositions is further supported by BMI Attorney Ellwood’s affidavit.
Docket no. 22-6 at 2.
Ellwood explains that BMI is in the business of acquiring public
performance rights and then granting businesses, such as Defendant’s lounge, the right to
publically perform the musical compositions. Id. Plaintiffs demonstrated that they have the
proprietary rights to the twelve pieces of musical compositions in this suit, satisfying the third
element of the cause of action.
D. Public Performance of the Musical Compositions
Plaintiffs claim that Defendant publicly performed, or caused to be public performed by a
DJ and/or a karaoke machine, twelve copyrighted musical compositions from the BMI repertoire
on the evening of June 13, 2014. Docket no. 22-1 at 3. The evidence includes a report from the
investigator who visited Defendant’s establishment on the evening of June 13, 2014 and
observed the public performance of the twelve musical compositions in question, and made
recordings of those performances. Docket no. 22-4 at 2. These performances included the
digital transmission of the musical compositions through a karaoke machine. Id. The expert’s
report includes photos and audio recordings of the performances, in addition to notes about the
performances. Id. at 19. The undisputed evidence contained in the investigator’s report supports
Plaintiffs’ contention that Defendant performed, or caused to be performed, twelve different
copyrighted musical compositions on the evening of June 13, 2014.
E. Lack of Authorization to Publicly Perform
Plaintiffs provide substantial evidence that Defendant was aware of the required license
needed to legally perform copyrighted works in the BMI repertoire, yet refused to maintain the
proper license. BMI sent Defendant over thirty letters detailing her obligation to obtain a license
in order to perform musical compositions from the BMI repertoire at her establishment. Docket
no. 22-1 at 3. BMI’s evidence includes copies of the letters sent to Defendant over the course of
seven years. Docket no. 22-5 at 2. The letters show BMI’s repeated attempts to make contact
with Defendant, including numerous opportunities for Defendant to resolve any copyright
infringements without litigation through the acquisition of the proper license. Defendant has not
produced evidence that she took any action or responded to any of BMI’s letters. Defendant’s
failure to obtain the required license to publicly perform musical compositions from the BMI
repertoire satisfies the fifth element of the cause of action.
Plaintiffs seek statutory damages, costs, and reasonable attorney’s fees, and a permanent
injunction against Defendant for future instances of copyright infringement.
A. Statutory Damages
A plaintiff in a copyright infringement suit may choose to pursue statutory damages for
copyright infringement, even if the statutory damages amount to less than the actual damages the
plaintiff experienced. Broadcast Music Inc., v. Xanthas, Inc. 855 F.2d 233, 236 (5th Cir. 1988).
Statutory damages for copyright infringement range from $750 to $30,000 per instance of
infringement. 17 U.S.C. § 504(c). A court may award any amount of statutory damages it
considers just, so long as the award does not exceed the statutory maximum. Id.
Plaintiffs seek statutory damages in the amount of $2,500 per instance of infringement,
for a total of $30,000.
Docket No. 22-1 at 6.
District courts have broad discretion in
determining what level of statutory damages to impose in a copyright infringement suit. See
Xanthas 855 F.2d at 237 (“[T]he court enjoys wide discretion in setting the amount of damages
for each work infringed and hence the final amount of damages.”).
The Fifth Circuit in
Broadcast Music, Inc. v. Hobi, Inc. upheld the district court’s award of statutory damages in the
amount $7,000, $1,000 for each instance of unauthorized performance of copyrighted music.
Broadcast Music, Inc. v. Hobi, Inc., 20 F.3d 1171, 1171 (5th Cir. 1994). In Broadcast Music,
Inc. v. Tex Border Mgmt., 11 F. Supp. 3d 689 (N.D. Tex. 2014), the district court awarded
$20,000 for each of the nine musical compositions the defendant infringed, an amount less than
twice the unpaid licensing fees. In Broadcast Music, Inc. v. Olivia’s Corp., No. 3:13-CV-00606P, 2014 U.S. Dist. WL 12603108 (N.D. Tex. June 19, 2014), the district court awarded $3,000
for each instance of infringement of a musical composition owned by the plaintiff. Plaintiffs
assert that Defendant’s unpaid licensing fees from May 2011 to July 2014 would have been
approximately $18,000. Plaintiffs’ request for statutory damages falls below the maximum
amount permitted under the statute and is consistent with other awards of statutory damages in
similar cases in the Fifth Circuit. Taking into account both restitution and deterrence, the Court
finds $30,000 ($2,500 per musical composition infringed) to be an appropriate award.
B. Costs and Attorney’s Fees
Plaintiffs in a copyright infringement suit may also recover full costs and reasonable
attorney’s fees. 17 U.S.C. § 505. The total amount of costs and attorney’s fees a plaintiff may
recover is left to the discretion of the court. Id. The Supreme Court has held that courts deciding
requests for attorney’s fees and costs in a copyright infringement case “must take into account a
range of considerations.” Kirtsaeng v. John Wiley & Sons, Inc. 136 S. Ct. 1979, 1984 (2016).
The Court held that district courts “should give substantial weight to the objective
reasonableness of the losing party’s position, while still taking into account all other
circumstances relative to the granting fees.” Id. at 1981–82.
Plaintiffs seek $14,900 in costs and attorney’s fees. Docket no. 22-1 at 8. They support
the reasonableness of this request with an affidavit from counsel Arthur Gollwitzer III. Docket
no. 22-7 at 1. In his affidavit, Gollwitzer provided his hourly rate ($590) and the hourly rate of
his associate ($280) and states his firm is representing Plaintiffs on a task-based, flat-fee, prenegotiated schedule based on tasks required to prosecute this action. Id. at 2. His affidavit
further states that Plaintiffs incurred costs and reasonable attorney’s fees in the amount of
$14,900, in line with the flat-fee schedule, including the $400 filing fee for this case. Id.
Defendant has not provided evidence to support the reasonableness of her position.
Defendant was aware of the requirement to obtain a BMI license in order to legally perform
copyrighted musical compositions at her establishment, yet she failed to renew her license with
BMI after her license expired. Further, Defendant did not respond to BMI’s ongoing efforts to
discuss the renewal of her license. The Court finds that the requested fees are reasonable
considering that BMI has filed a complaint, motion for default judgment, and a motion for
summary judgment to prosecute this case.
C. Permanent Injunction
Finally, Plaintiffs seek a permanent injunction against future copyright infringement by
Defendant. Docket no. 22-1 at 8. Permanent injunctions are available to plaintiffs in copyright
infringement suits when the court deems an injunction reasonable in order to prevent the further
infringement of the plaintiff’s copyrights. 17 U.S.C. § 502.
Plaintiffs submitted evidence showing that Defendant has continued to perform music
from the BMI repertoire at her business without a license, thus infringing on Plaintiffs’
copyrights over a period of many years.
Docket no. 22-1 at 9.
infringement of Plaintiffs’ copyright persists despite extensive efforts by BMI to curb the
infringement. Id. As a result of Defendant’s refusal to cease her performance of musical
compositions without a license, a permanent injunction is appropriate to prevent Defendant from
infringing in the future.
Plaintiffs’ Motion for Summary Judgment (docket no. 22) is GRANTED. The Court will
separately issue a Judgment in favor of Plaintiffs for copyright infringement damages in the
amount of $30,000 and $14,900 for costs and reasonable attorney’s fees, plus post-judgment
interest. A permanent injunction will also be issued against Defendant enjoining her from
publicly performing, or causing to be publicly performed, without a license from BMI, any
original musical compositions contained in the BMI repertoire at her establishment.
SIGNED this 28th day of February, 2017.
UNITED STATES DISTRICT JUDGE
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