July 10, 2013

BMI Wins on Summary Judgment in Infringement Case

Indianapolis, Indiana -- The Southern District of Indiana has granted a motion by New York-based Broadcast Music, Inc. et al. for summary judgment against Diamond Investments, Inc. and Salvatore Mazza of Franklin, Indiana for copyright infringement for the unlicensed use of copyrighted musical compositions in live performances at The Juke Box Live.

Thumbnail image for Thumbnail image for Thumbnail image for BMILogo.JPGBroadcast Music, Inc. ("BMI") is a "performing rights society" under 17 U.S.C. § 101 that operates on a non-profit-making basis and licenses the right to publicly perform copyrighted musical works on behalf of the copyright owners of these works.  The other plaintiffs in this action are the copyright owners of the eight compositions at issue in this lawsuit.

Diamond Investments, Inc. ("Diamond") is an Indiana corporation that operated The Juke Box Live, a "nightclub restaurant entertainment venue." Musical compositions were publicly performed at The Juke Box Live in connection with Diamond's operation of that business. 

Salvatore T. Mazza ("Mazza") was an officer of Diamond with primary responsibility for the operation and management of Diamond and The Juke Box Live. Mazza also had a direct financial interest in the corporation and The Juke Box Live.

Prior to February 2010, BMI learned that The Juke Box Live was offering musical entertainment without a license from BMI and without permission from the copyright owners whose music was being publicly performed. Between February 4, 2010 and May 31, 2011, BMI repeatedly informed Diamond and Mazza (collectively, "defendants") in writing of the need to obtain permission for public performances of copyrighted music and offered to enter into a license agreement with defendants, but they refused.  BMI also sent four letters instructing defendants to cease unauthorized public performances of BMI's music and telephoned on 55 occasions to advise defendants of the need to enter into a license agreement.

Nonetheless, the infringement continued.  On March 19, 2011, a BMI investigator went to The Juke Box Live and recorded the performance of songs owned by the various non-BMI plaintiffs.  An action for copyright infringement of eight works performed at The Juke Box Live, brought pursuant to 17 U.S.C. § 101 et seq. (the "Copyright Act"), followed.

BMI later moved for summary judgment and the defendants, although represented by counsel, did not respond.  The court held that, due to their failure to answer or object to BMI's requests for admissions, defendants were deemed to have tacitly admitted to copyright infringement. 

The court awarded $3,000.00 for each of the eight findings of infringement in this case, for $24,000.00 in total, for the infringement itself.  It also found that the infringement had been willful and consequently awarded to the plaintiffs $17,985.55, to cover in full plaintiff's costs and attorney's fees.  The court also ordered that post-judgment interest be paid.  These damages and costs were assessed against Diamond and Mazza jointly and severally.

Finally, the court ordered that Diamond and Mazza, each individually, as well as all persons acting under their permission or authority, be permanently enjoined from infringing the copyrighted musical compositions licensed by BMI.

Practice Tip:

The Copyright Act empowers a plaintiff to elect to receive an award of statutory damages between $750 and $30,000 per infringement in lieu of an award representing the plaintiffs' actual damages and/or the defendants' profits.  In a case where the copyright owner proves that infringement was committed willfully, the court may increase the award of statutory damages to as much as $150,000 per infringed work.  A finding of willful infringement will also support an award of attorney's fees. 

Here, the court awarded $3,000 per infringement plus attorney's fees.  Courts considering awards of statutory damages have recognized that awards in the range of $3,000 to $7,000 or higher per infringement are appropriate in cases where the infringement resulted from deliberate indifference toward copyright laws.

Furthermore, not only is the performer liable for infringement, but so is anyone who sponsors the performance.  A corporate officer will be found jointly and severally liable with his corporation for copyright infringement if he (1) had the right and ability to supervise the infringing activity, and (2) has a direct financial interest in such activities.

 

This case was assigned to The Honorable Judge Sarah Evans Barker
and Magistrate Judge Denise K. LaRue, and assigned Case No. 1:11-cv-927-SEB-DKL

057-Order-granting-MSJ-w-Legend-4-17-2013.pdf