`
`IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
`MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
`
`CIVIL ACTION NO.
`1:04cv393-MHT
`(WO)
`
`SIMPLEVILLE MUSIC, et al., )
`)
`Plaintiffs,
`v.
`H. JACK MIZELL,
`Defendant.
`
`))
`
`)
`)
`
`))
`
`)
`
`OPINION
`The plaintiffs are members of the American Society of
`Composers, Authors and Publishers (“ASCAP”), to which they
`have granted a non-exclusive right to license public
`performances of their copyrighted musical compositions.1
`The plaintiffs brought this lawsuit against defendant H.
`Jack Mizell, charging that he violated the Copyright Act,
`
`The plaintiffs are Simpleville Music; New Hidden
`1.
`Valley Music Co.; BMG Songs, Inc.; Famous Music
`Corporation; Sony/ATV Tunes LLC; WB Music Corp.; Lanny
`Wolfe Music Company; Integrity Music, Inc. d/b/a
`Integrity's
`Hosanna
`Music;
`Lensongs
`Publishing;
`Universal-MCA Music Publishing, a Division of Universal
`Studios, Inc.; Doors Music Company; Hulex Music/WB Music
`Corp.; J. Albert & Son (USA) Inc.; and Pure Songs and
`Frank Music Corp.
`
`
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`17 U.S.C. § 101-1332, by playing ASCAP’s copyrighted
`musical compositions on the radio without authorization.
`This court has jurisdiction under 28 U.S.C. § 1338(a)
`(copyright) and § 1331 (federal question). Currently
`before the court is the plaintiffs’ motion for summary
`judgment. The motion will be granted for the reasons that
`follow.
`
`I. SUMMARY-JUDGMENT STANDARD
`Summary judgment is appropriate “if the pleadings,
`depositions, answers to interrogatories, and admissions on
`file, together with the affidavits, if any, show that
`there is no genuine issue as to any material fact and that
`the moving party is entitled to a judgment as a matter of
`law.” Fed. R. Civ. P. 56(c). Under Rule 56, the party
`seeking summary judgment must first inform the court of
`the basis for the motion, and the burden then shifts to
`the non-moving party to demonstrate why summary judgment
`would not be proper. Celotex Corp. v. Catrett, 477 U.S.
`
`2
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`
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`317, 323 (1986); see also Fitzpatrick v. City of Atlanta,
`2 F.3d 1112, 1115-17 (11th Cir. 1993) (discussing burden-
`shifting under Rule 56). The non-moving party must
`affirmatively set forth specific facts showing a genuine
`issue for trial and may not rest upon the mere allegations
`or denials in the pleadings. Fed. R. Civ. P. 56(e).
`The court's role at the summary-judgment stage is not
`to weigh the evidence or to determine the truth of the
`matter, but rather to determine whether a genuine issue
`exists for trial. Anderson v. Liberty Lobby, Inc., 477
`U.S. 242, 249 (1986). In doing so, the court must view
`the evidence in the light most favorable to the non-moving
`party and draw all reasonable inferences in favor of that
`party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574, 587 (1986).
`
`II. FACTS
`Mizell is the owner of Shelley Broadcasting, Inc. and
`Stage Door Development, Inc., and these two companies, in
`
`3
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`turn, operate radio stations WGEA and WRJM-FM,
`respectively. On September 20 and 21, 2003, WGEA
`broadcasted seven of the plaintiffs’ ASCAP copyrighted
`compositions, and, on September 21 and 22, WRJM-FM
`broadcasted an additional eight. Neither station had
`ASCAP’s permission to perform these compositions.
`The 15 broadcasted songs are “I Can Only Imagine,”
`“Any Day Now,” “Stranger In My House,” “Walking In
`Memphis,” “Lovin’ All Night,” “Maybe God Is Tryin’ To Tell
`You Somethin’,” “His Hand In Mine,” “More Than Wonderful,”
`“Above All,” “Love Is Alive,” “L.A. Woman,” “Hip To Be
`Square,” “Highway To Hell,” “Smokin’,” and “Luck Be A Lady
`Tonight.”
`
`III. DISCUSSION
`To establish a prima-facie copyright infringement case
`for a musical composition, a plaintiff may prove (1)
`ownership of a valid copyright and (2) “public
`performance”
`of
`the
`copyrighted
`work
`without
`
`4
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`authorization. 17 U.S.C. § 106(4) (subject to other
`provisions in the Copyright Act that provide that certain
`uses of copyrighted materials are not infringements
`despite § 106, “the owner of copyright ... has the
`exclusive rights ... in the case of ... musical ... works
`... to perform the copyrighted work publicly”); cf. Feist
`Publications, Inc. v. Rural Telephone Service Co., Inc.
`499 U.S. 340, 361 (1991) (“To establish infringement, two
`elements must be proven: (1) ownership of a valid
`copyright, and (2) copying of constituent elements of the
`work that are original.”); A & M Records v. Napster, Inc.,
`239 F.3d 1004, 1013 (9th Cir. 2001) (“Plaintiffs must
`satisfy two requirements to present a prima facie case of
`direct infringement: (1) they must show ownership of the
`allegedly infringed material and (2) they must demonstrate
`that the alleged infringers violate at least one exclusive
`right granted to copyright holders under 17 U.S.C.
`§ 106.”).
`
`5
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`The plaintiffs have satisfied the first element by
`submitting copies of the copyright registration
`certificates. See 17 U.S.C. § 410(c) (“In any judicial
`proceedings the certificate of a registration made before
`or within five years after first publication of the work
`shall constitute prima facie evidence of the validity of
`the copyright and of the facts stated in the
`certificate.”).
`With regard to the second element, the plaintiffs have
`presented the affidavits of Jerry Glaze, who recorded the
`broadcasts of radio stations WGEA and WRJM-FM on the days
`in dispute, and Alex Kuzyszyn, who listened to the tapes
`and identified that the 15 compositions constituting the
`basis of this suit were found on the tape recordings. The
`evidence supplied by Mizell either admits that these
`compositions were broadcast on radio stations WGEA and
`WRJM-FM or concedes that they may have been played. And
`the law is settled that a radio broadcast constitutes a
`“performance” within the meaning and coverage of copyright
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`6
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`law. Twentieth Century Music Corp. v. Aiken, 422 U.S.
`151, 161 (1975) (“Broadcasters perform.”); 2 Melville B.
`Nimmer & David Nimmer, Nimmer on Copyright § 8.14[B][1]
`(2006) (“the act of broadcasting a work is itself a
`performance of that work”); see also 17 U.S.C. § 101 (“To
`‘perform’ a work means to recite ... it, either directly
`or by means of any device or process ....”). Mizell also
`admits that he did not have permission from the plaintiffs
`or ASCAP to broadcast the 15 songs.
`However, Mizell asserts an array of defenses to the
`copyright claims. He argues that there was no
`infringement because (1) the compositions were played from
`promotional CDs; (2) the compositions were played as
`incidental, background, or bumper music;2 (3) the
`composition performers were not ASCAP members; (4) the
`compositions fall within the religious exemption to
`
`“Bumper music ... refers to the short clips of
`2.
`music used to buffer transitions between programming
`elements, such as when a syndicated program takes a break
`for local station identification or ‘goes to
`commercial.’” http://en.wikipedia.org/wiki/Bumper_music.
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`copyright laws; (5) he did not intend to violate copyright
`laws; and (6) he did not personally control the content of
`the broadcasts. Mizell also requests a jury trial so that
`it may determine the appropriate amount of statutory
`damages. The court will discuss the validity of each
`defense.
`
`1. Promotional CDs
`Mizell contends that he could play the songs without
`permission because they came off promotional CDs.
`According to him, his stations have had a policy of
`playing only promotional, royalty-free music since 1991,
`and the ASCAP songs he played came from free CDs the radio
`stations received, royalty-free, from either Compact Disc
`Xpress (CDX) or Crossroads.3 Promotional CDs are CDs that
`are distributed for free and for which the writer and
`publisher will not collect royalties. 6 Melville B.
`Nimmer & David Nimmer, Nimmer on Copyright § 30.02 (2006).
`
` Def. Supplemental Reply Memorandum (Doc. No.
`3.
`74), Mizell Affidavit, p.1.
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`However, the fact that a copyright holder grants
`recording companies the right to make and distribute
`promotional copies of their songs does not mean that it
`waives its right to collect fees when a radio station
`wishes to broadcast publically from the promotional copy.
`Chappell & Co. v. Middletown Farmers Market & Auction Co.,
`334 F.2d 303, 305 (3rd Cir. 1964) (“The surrender of one
`monopoly--the right to make mechanical reproductions--does
`not carry with it the right to publicly perform the
`copyrighted musical composition.”).
`Moreover, while Mizell provides multiple examples of
`music subscription services that pay the licensing fees
`for the subscriber,4 none of these examples includes CDX
`or Crossroads, the two publishers of the CDs Mizell
`contends are promotional. In fact, the copies of the CD
`
`Mizell’s radio stations currently have an
`4.
`agreement with TM Century® to use their ImagioTM MegaMusic
`production libraries, which provide production music beds
`of 60 seconds or less duration, and various sound effects
`and combinations of sound effects. The radio stations
`also use Premier Radio Network’s Plug and Play Imaging
`service which contains pre-produced promos and liners for
`radio stations along with edited hit music bumpers.
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`sleeves that accompanied the CDX CDs include the following
`cautionary language: “NOT FOR SALE: for promotional use
`only. Warning all rights reserved. Unauthorized
`duplication is a violation of applicable law.”5
`It is apparent that Mizell is using the term
`“promotional” out of context. The language on the CD
`sleeve defines the terms of its free, but restricted,
`transfer. The CD itself is promotional, its licensing for
`public performance is not. A radio station that receives
`a CD labeled “for promotional use only,” which means that
`the station did not have to pay for the CD, must still
`obtain permission before broadcasting its contents. See
`Chappell, 334 F.2d at 305.
`Mizell’s promotional-CD defense is meritless.
`
`2. Incidental or Background Use
`Mizell used several ASCAP songs as background or
`bumper music. He asserts that, because ASCAP does not pay
`
`Def. Reply in Opposition to Summary Judgment
`5.
`(Doc. No. 60), Parker Affidavit, Exhibit 1-A.
`10
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`royalties to its members for background, bumper, or other
`incidental uses, he may use those songs as such without
`paying any licensing fees.
`Background music is not exempt from being subject to
`licensing fees. See Schumann v. Albuquerque Corp., 664 F.
`Supp. 473, 477 (D.N. M. 1987) (Bratton, J.) (“The fact
`that the song might have been used as background to a
`community calendar does not render its performance fair
`use under § 107.”). Additionally, courts do allow
`incidental use fees. See United States v. American Socy.
`of Composers, 981 F. Supp. 199 (S.D. N.Y. 1997) (Conner,
`J.) (ASCAP’s incidental use fee of 0.06% is reasonable).
`Mizell’s background-use defense is meritless.
`
`3. Non-ASCAP Performers
`Mizell argues that the plaintiffs cannot claim
`copyright infringement when the performers of the
`offending compositions are not ASCAP members.
`
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`The copyright owner has an interest in the composition
`itself, regardless of the performer. 17 U.S.C. § 501(b).
`“The legal or beneficial owner of an exclusive right under
`a copyright is entitled, subject to the requirements of
`[17 U.S.C. §] 411, to institute an action for any
`infringement of that particular right committed while he
`or she is the owner of it.” Id. (emphasis added)).
`Mizell's non-ASCAP-performer defense is meritless.
`
`4. Religious Exemption
`Mizell argues that the ‘religious exemption’ allowed
`him to broadcast some of the copyrighted compositions
`because they were performed during church services. 17
`U.S.C. § 110(3) creates an exemption to copyright-law
`requirements for the “performance of a nondramatic
`literary or musical work or of a dramatico-musical work of
`a religious nature, or display of a work, in the course of
`services at a place of worship or other religious
`assembly.”
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`The critical language here is "at a place of worship
`or other religious assembly”; the exception says nothing
`about broadcasts in general and, more specifically,
`broadcasts from a place of worship. True, it could be
`argued the exemption should apply where, although the
`songs are being broadcast, there is an audience at the
`place of worship; in short, the exemption, it could be
`argued, should apply because the conditions to the
`exemption have been satisfied. Thus, it also could be
`argued, the exemption should apply to all simultaneous
`performances as long as one of the performances falls
`within the exemption.
`However, the law is clear that radio broadcasting is
`itself a separate public performance which can constitute
`an infringement. Twentieth Century Music Corp. v. Aiken,
`422 U.S. 151, 161 (1975) (“Broadcasters perform.”); 2
`Melville B. Nimmer & David Nimmer, Nimmer on Copyright
`§ 8.14[B][1] (2006) (“the act of broadcasting a work is
`itself a performance of that work”); see also 17 U.S.C.
`
`13
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`§ 101 (“To ‘perform’ a work means to recite ... it, either
`directly or by means of any device or process ....”).
`Thus, the mere fact that a radio broadcast of a song is
`simultaneous with the playing of the song at a place of
`worship does not mean that broadcast falls within the
`religious exemption; playing to the audience at the place
`of worship and playing to a broadcast audience are
`separate public performances. See H.R. Rep. No. 94-1476,
`at 55 (1976) (“[A] singer is performing when he or she
`sings a song; a broadcasting network is performing when it
`transmits his or her performance ...; a local broadcaster
`is performing when it transmits the network broadcast; a
`cable television system is performing when it retransmits
`the broadcast to its subscribers....”); see also, Schumann
`v. Albuquerque Corp., 664 F.Supp. 473, 475 (D. N.M. 1987)
`(Bratton, J.) (radio broadcast is a separate performance
`from live performance).
`This understanding of the religious exemption is
`supported by its legislative history, which provides that
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`the exemption does “not extend to religious broadcasts or
`other transmissions to the public at large, even where the
`transmissions were sent from the place of worship.” H.
`Rep. No. 94-1476, at 84, reprinted in 1976 U.S.C.C.A.N at
`5698-99.
`Accordingly, the court concludes that the religious
`exemption does not allow Mizell to broadcast copyrighted
`songs, performed during church services, without
`authorization, for such broadcasts are not “at a place of
`worship”. Id. Mizell's religious-exemption defense is
`meritless.
`
`5. Lack of Intent
`Mizell protests that he did not intend to play
`copyrighted material and took measures to protect against
`such infringements. However, “intention to infringe is
`not essential under the [Copyright] Act.” Buck v.
`Jewell-LaSalle Realty Co., 283 U.S. 191, 198 (1931). See
`U.S. Songs, Inc. v. Downside Lenox, Inc., 771 F. Supp.
`
`15
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`1220, 1228 (N.D. Ga. 1991) (Hall, J.) (“[T]he law is
`clear that lack of intent to infringe does not shield the
`infringer from liability.”); 4 Melville B. Nimmer & David
`Nimmer, Nimmer on Copyright § 13.08 (2006) (“In actions
`for statutory copyright infringement, the innocent intent
`of the defendant will not constitute a defense to a
`finding of liability.”).
`Admittedly, five of the songs in this case were
`broadcast during syndicated radio shows, while one song
`was broadcast as part of a national television commercial.
`Nevertheless, “a broadcaster who is aware of his
`obligations under copyright law remains responsible for
`ensuring that copyrighted music is not aired without
`permission.” Jobete Music Co., Inc. v. Johnson
`Communications, Inc., 285 F.Supp.2d 1077, 1089 (S.D. Ohio
`2003) (Rice, C.J.) (where defendant was liable for
`copyright infringement for airing an NBC commercial that
`played “This Will Be (An Everlasting Love)” in the
`background without permission). Although Mizell did not
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`produce the commercial or the radio shows himself, he was
`still responsible for ensuring that all of the licensing
`fees were paid. Consequently, Mizell's no-intent defense
`is meritless.
`
`6. Personal Participation in Infringement
`Mizell denies liability on the ground that he did not
`personally participate in the infringement. However, as
`the president, owner, and sole stockholder of the
`companies that own WGEA and WRJM-FM, he is liable for any
`infringement occurring at the stations. A person
`“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 the infringement.”
`Southern Bell. Tel. & Tel. Co. v. Associated Tel.
`Directory Publishers, Inc., 756 F.2d 801, 811 (11th Cir.
`1985) (citation omitted); see also Chi-Boy Music v. Towne
`Tavern, Inc., 779 F. Supp. 527, 530 (N.D. Ala. 1991)
`
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`(Hancock, J.). Similarly, “under the Copyright Act, an
`individual who is the dominant influence in a corporation,
`and through his position can control the acts of that
`corporation, may be held jointly and severally liable with
`the corporate entity for copyright infringements, even in
`the absence of the individual's actual knowledge of the
`infringements.” Quartet Music v. Kissimmee Broadcasting,
`Inc., 795 F. Supp. 1100, 1103 (M.D. Fl. 1992) (Kellam,
`J.). The record is clear that Mizell fits the bill of
`being the supervising, dominant figure at the two radio
`stations.
`Mizell's
`meritless.
`
`is
`
`no-personal-participation
`
`defense
`
`7. Judge or Jury Trial
`Mizell demands a jury on damages. 17 U.S.C. § 504(c)
`explains that “an infringer of copyright is liable for
`either--(1) the copyright owner's actual damages and any
`additional profits of the infringer, as provided by
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`subsection (b); or (2) statutory damages, as provided by
`subsection (c).” Subsection (c) further details that a
`“copyright owner may elect, at any time before final
`judgment is rendered, to recover, instead of actual
`damages and profits, an award of statutory damages ...
`with respect to any one work ... of not less than $ 750 or
`more than $ 30,000 as the court considers just.”
`Although the statute itself does not require a jury
`trial, the Supreme Court has held that “the Seventh
`Amendment provides a right to a jury trial on all issues
`pertinent to an award of statutory damages under § 504(c)
`of the Copyright Act, including the amount itself.”
`Feltner v. Columbia Pictures Television, Inc., 523 U.S.
`340, 355 (1998).
`The plaintiffs argue that a jury trial is unnecessary
`because they will accept the minimum statutory award of
`$ 750 per violation. “Feltner ... establish[ed] ... that
`cases under § 504(c) are normal civil actions subject to
`the normal allocation of functions between judge and
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`jury.” BMG Music v. Gonzalez, 430 F.3d 888, 892 (7th Cir.
`2005), cert. denied, 126 S.Ct. 2032 (2006). “When there
`is a material dispute of fact to be resolved or discretion
`to be exercised in selecting a financial award, then
`either side is entitled to a jury; if there is no material
`dispute and a rule of law eliminates discretion in
`selecting the remedy, then summary judgment is
`permissible.” Id. at 892-893.
`Here, because the plaintiffs are seeking the statutory
`minimum and because the plaintiffs are asserting only one
`violation per song and because the record establishes as
`a matter of law that the violations occurred, the law has
`eliminated any discretion as to damages, and summary
`judgment is appropriate. See id. (holding that, because
`there were no disputed facts as to the statutory minimum
`award, summary judgment was proper as to damages); Lava
`Records, LLC v. Ates, No. Civ.A.05-1314, 2006 WL 1914166,
`at *3 (W.D. La. July 11, 2006) (James, J.) (finding that
`because the plaintiffs sought only the minimum statutory
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`amount and courts have routinely held that an award of
`$ 750.00 per work is appropriately awarded by summary
`judgment, there was no need for jury trial on the issue of
`No.
`Lyons,
`damages);
`Capitol
`Records
`v.
`Civ.A.3:03-CV-2018-L., 2004 WL 1732324, at *3 (N.D. Tex.
`Aug. 2, 2004) (Ramirez, Mag. J.) (finding that no hearing
`was necessary prior to an award of the minimum $ 750.00
`per work where defendant defaulted and his acts of
`infringement were deemed admitted).
`In short, because there is nothing for a jury to
`decide here as to damages, a jury is unnecessary.
`
`8. Injunctive Relief
`The plaintiffs request that the court permanently
`enjoin Mizell from publicly performing the 15 songs.
`While the court may grant a permanent injunction “on such
`terms as it may deem reasonable to prevent or restrain
`infringement of a copyright,” 17 U.S.C. § 502(a), that
`grant is not unlimited; the court may, as a general
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`matter, do so only when there is a substantial likelihood
`of further infringement of a plaintiff’s copyrights. 4
`Melville B. Nimmer & David Nimmer, Nimmer on Copyright §
`14-06[B] (2006); see also U.S. Songs, Inc. v. Downside
`Lenox, Inc., 771 F. Supp. 1220, 1229 (N.D. Ga. 1991)
`(Hall, J.).
`The record, on the plaintiffs' summary-judgment
`motion, is unclear whether Mizell's failure to honor the
`plaintiffs' copyrights was in good or bad faith. The
`court therefore believes that the prudent course to follow
`is to have an evidentiary hearing specifically addressing
`whether injunctive relief is needed and, if so, what form
`that relief should take. Of course, this assumes that
`the plaintiffs still want such relief in the wake of the
`final judgment entered today. Therefore, the plaintiffs
`will have seven days from the date of this opinion to
`inform the court in writing if they want such relief, and,
`if they do, the court will set the matter down for an
`evidentiary hearing. If the plaintiffs fail to make this
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`request within the time allowed, the court will assume
`that they have abandoned such relief.
`
`IV. CONCLUSION
`Because the plaintiffs have proven each of the
`elements of copyright infringement as to each of the 15
`songs, and because Mizell has failed to offer valid
`defenses, an appropriate summary judgment in favor of the
`plaintiffs will be entered. The assessment will be the
`minimum statutory fee of $ 750 for each of the 15
`infringements, for a total of $ 11,250 (15 x $ 750 =
`$ 11,250).
`DONE, this the 14th day of September, 2006.
`
`/s/ Myron H. Thompson_____________________________
`
`UNITED STATES DISTRICT JUDGE