`
`IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
`MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
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`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 non-dramatic
`public performances of their copyrighted musical
`compositions.1 The plaintiffs brought this lawsuit against
`defendants Shelly Broadcasting Company, Inc., Stage Door
`1.
`The plaintiffs are: Joelsongs; Experience
`Hendrix, LLC; Richard Adler, d/b/a Lakshmi Puja Music,
`Ltd.; Judith Coulter, d/b/a J&J Ross, Co.; Janie Coulter
`Hartbarger d/b/a J&J Ross, Co.; Warner Bros., Inc.; Emi
`Full Keel Music Co.; Van Halen Music Co.; Chappell & Co.,
`Inc.; Jay’s Enterprises, Inc.; Controversy Music;
`Creeping Death Music; Doors Music Company; Siquomb
`Publishing Corp.; Universal Studios, Inc.; Integrity’s
`Hosanna Music; Bonnyview Music, Corp.; and Sound III,
`Inc.
`
`JOELSONGS, et al.,
`Plaintiffs,
`v.
`SHELLEY BROADCASTING
`COMPANY, INC., et al.,
`Defendants.
`
`CIVIL ACTION NO.
`) 1:06cv774-MHT
` (WO)
`)
`)
`
`
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`Case 1:06-cv-00774-MHT-SRW Document 26 Filed 06/08/07 Page 2 of 18
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`Development, Inc., and H. Jack Mizell, charging that they
`violated the Copyright Act, 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.
`
`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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`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 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 only 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
`On February 25 and 27, 2006, several ASCAP copyrighted
`compositions were broadcast over radio-station WGEA, which
`is operated by Shelley Broadcasting. On February 24, 25,
`and 26, 2006, additional selections of ASCAP copyrighted
`songs were broadcast on radio-station WRJM-FM, which is
`operated by Stage Door. Mizell is the owner of Shelley
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`Broadcasting and Stage Door. A total of 20 ASCAP-
`copyrighted songs were broadcast over the defendants’
`radio stations. Neither station had ASCAP’s permission to
`perform these compositions.
`The 20 broadcasted songs are “We Didn’t Start The
`Fire,” “Little Wing,” “Hey There,” “Begin The Beguine,”
`“Pink Houses,” “Panama,” “This Will Be (An Everlasting
`Love),” “Raspberry Beret,” “Faith,” “Master Of Puppets,”
`“Little Red Corvette,” “Light My Fire,” “Big Yellow Taxi,”
`“Jump,” “Rikki, Don’t Lose That Number,” “God Will Make A
`Way,” “Since I Don’t Have You,” “We Have Come Into His
`House (To Worship Him),” “Small Town,” and “1999.”
`
`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
`authorization.” Simpleville Music v. Mizell, 451 F. Supp.
`2d 1293, 1291 (M.D. Ala. 2006) (Thompson, J.) (citing 17
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`U.S.C. § 106(4) (subject to specific exclusions outlined
`in the Copyright Act, “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.”).
`The plaintiffs have satisfied the first element by
`submitting
`copies
`of
`the
`copyright-registration
`certificates which, pursuant to 17 U.S.C. § 410(c),
`constitute prima-facie evidence of copyright ownership.
`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.”); see also
`Simpleville Music, 451 F. Supp. 2d at 1296 (“The
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`plaintiffs have satisfied the first element by submitting
`copies of the copyright registration certificates.”).
`In satisfaction of the second element, the plaintiffs
`present the affidavits of Jerry Glaze, who recorded the
`broadcasts off radio-stations WGEA and WRJM-FM on the days
`in dispute, and Oleksander Kuzyszyn, who listened to the
`tapes and identified that the 20 compositions constituting
`the basis of this lawsuit were found on the tape
`recordings. By failing to respond to the plaintiffs’
`request for admissions, the defendants admitted to the
`songs being played, see Fed. R. Civ. P. 36(a), and the
`defendants also admit that they did not have permission to
`broadcast the 20 songs.
`The defendants, however, assert three defenses to the
`copyright claims: that (1) the music was played as part of
`satellite programming for which they did not need a
`license; (2) only the radio stations, not Mizell, should
`be liable for the alleged infringements; and (3) they did
`not intend to violate copyright laws. The court will
`discuss the validity of each defense.
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`A. Songs Played During Satellite Programming
`The defendants contend that all the songs were played
`during satellite programming and that the satellite
`companies assured Mizell that no copyrighted material
`would be played. Although the defendants have not
`presented any physical evidence to support this
`contention, the assurances, even if made, do not absolve
`the defendants of liability because “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.); see also Simpleville Music,
`451 F. Supp. 2d at 1299 (“Although Mizell did not 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.”). Therefore, although the copyrighted music
`was aired through satellite programming, the defendants
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`were still responsible for ensuring that all of the
`licensing fees were paid; the defendants are still liable
`for violating the Copyright Act.
`
`
`B. Intent
`The defendants protest that they 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 also Simpleville Music, 451 F. Supp. 2d at
`1299; 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.”). The defendants’ lack of intent does not
`shield them from liability.
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`C. Personal Liability of Owner
`Mizell denies liability on the ground that he did not
`personally participate in, or profit from, the
`infringement; he says he performed his duties as only the
`owner. However, the record is clear that, as the
`president, owner, and sole stockholder of the companies
`that own WGEA and WRJM-FM, he was essentially a one-man
`show. 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). 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.”
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`Simpleville Music, 451 F. Supp. 2d at 1299 (quoting
`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.”
`Id. As such, he is personally liable for the Copyright
`Act violations.
`
`D. Damages
`17 U.S.C. § 504(c) of the Copyright Act allows a
`plaintiff to recover “statutory damages” in lieu of actual
`damages.2 The court without finding wilfulness can award
`
`2.
`
`In relevant part, § 504(c) provides:
`“(1) Except as provided by clause (2) of
`this subsection, the 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 for all infringements
`involved in the action, with respect to
`any one work, ... in a sum of not less
`than $ 750 or more than $ 30,000 as the
`court considers just....
`“(2) In a case where the copyright owner
`(continued...)
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`up to $ 30,000 per infringement in statutory damages. Id.
`A finding of wilfulness allows the court to raise the
`statutory award to no more than $ 100,000 per
`infringement. Id. The plaintiffs are seeking $ 5,000 in
`statutory damages per infringement. Because plaintiffs
`are seeking less than $ 30,000, willfulness on the part of
`the defendants is not required. However, the record shows
`that the defendants did willfully infringe on the
`plaintiffs’ copyrights.
`The defendants argue that they did not willfully
`violate the Copyright Act because the alleged infringement
`
`2.
`
`(...continued)
`sustains the burden of proving, and the
`court finds, that infringement was
`committed willfully, the court in its
`discretion may increase the award of
`statutory damages to a sum of not more
`than $ 150,000. In a case where the
`infringer sustains the burden of
`proving, and the court finds, that such
`infringer was not aware and had no
`reason to believe that his or her acts
`constituted
`an
`infringement
`of
`copyright, the court in its discretion
`may reduce the award of statutory
`damages to a sum of not less than
`$ 200....”
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`occurred prior to the resolution of Simpleville Music,
`where this court found that the same defendants had
`infringed other ASCAP-member plaintiffs’ copyrights; the
`defendants contend that up until that point they did not
`know that they were violating the Copyright Act. However,
`the record indicates, and the defendants do not dispute,
`that before this or any other lawsuit was filed against
`them, ASCAP repeatedly offered them an ASCAP license,
`which would have permitted them to play the plaintiffs’
`copyrighted works legally. ASCAP further informed the
`defendants that, without a proper license, their conduct
`would violate copyright laws. Nevertheless, the
`defendants refused ASCAP’s offers of a license, while
`continuing to broadcast copyrighted songs.
`Moreover, in 1993, in Bencap v. Shelley Broadcasting,
`civil action no. 93-A-696-S (M.D. Ala. Dec. 28, 1993),
`Shelley Broadcasting and Mizell agreed to a consent
`judgment where they admitted to “willfully” infringing the
`copyrights of the ASCAP-member plaintiffs, and they were
`permanently enjoined from publicly performing the
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`plaintiffs’ musical compositions in the future. And, in
`2004, in Simpleville Music, before entry of a final
`judgment against Mizell in that case and before the
`infringements in the instant case, this court entered a
`default judgment in the amount of $ 48,000 against Shelley
`Broadcasting and Stage Door for infringing the copyrights
`of the ASCAP-member plaintiffs in that case.
`In light of the defendants’ previous, continuous, and
`knowing and willful infringements of ASCAP-members’
`copyrights, it is indisputable that their violations of
`the Copyright Act here were willful. However, the court
`does not find it appropriate to increase the statutory
`damages above the amount requested by the plaintiffs; the
`court will award statutory damages in the amount of
`$ 5,000 per violation.
`
`E. Injunction
`The plaintiffs also seek, pursuant to § 502 of the
`Copyright Act, to enjoin the defendants from publicly
`performing ASCAP members’ copyrighted music. Section
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`502(a) of the Copyright Act specifically authorizes this
`court to “grant ... final injunctions on such terms as it
`may deem reasonable to prevent or restrain infringement of
`a copyright.” See Pacific & Southern Co., Inc. v. Duncan,
`744 F.2d 1490, 1499 n.17 (11th Cir. 1984) (the Copyright
`Act authorizes an injunction “on such terms as it may deem
`reasonable to prevent or restrain infringement of a
`copyright”), cert. denied, 471 U.S. 1004 (1985).
`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
`matter, do so only when there is a substantial likelihood
`of further infringement of a plaintiff’s copyrights.
`Simpleville Music, 451 F. Supp. 2d at 1300; see also 4
`Melville B. Nimmer & David Nimmer, Nimmer on Copyright
`§ 14-06[B](2006).
`The plaintiffs contend that the defendants are likely
`to continue infringing on the copyrighted compositions
`that belong to them and all other ASCAP members as
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`demonstrated by the fact that the defendants have been
`sued twice already, and yet they have willfully continued
`to infringe on the copyrights of ASCAP members. As
`stated, in 1993, in Bencap, Shelley Broadcasting and
`Mizell agreed to a consent judgment where they admitted to
`“willfully” infringing the copyrights of the ASCAP-member
`plaintiffs, and they were permanently enjoined from
`publicly performing the plaintiffs’ musical compositions
`in the future, and, in 2004, in Simpleville Music, before
`the infringements in the instant case, this court entered
`a default judgment in the amount of $ 48,000 against
`Shelley Broadcasting and Stage Door for infringing the
`copyrights of the ASCAP-member plaintiffs in that case.
`The defendants have, therefore, unsuccessfully defended
`two prior lawsuits in which money judgments were awarded
`against them, and yet they continued to violate the
`Copyright Act by broadcasting copyrighted compositions
`without first obtaining a proper license. It is
`indisputable that money judgments have not been an
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`effective tool to “prevent or restrain infringement[s] of
`... copyright[s],” 17 U.S.C. § 502(a), by the defendants.
`The court recognizes that the injunction the
`plaintiffs seek goes beyond a prohibition of the
`unauthorized broadcasting of the plaintiffs’ songs only.
`The court nevertheless considers such a broad injunction
`warranted for several reasons. First, the defendants have
`not objected to the breadth of the injunction. Second,
`while it would appear that this lawsuit is brought by the
`named plaintiffs, it is really brought by ASCAP as the
`enforcement organization on behalf of the named
`plaintiffs. ASCAP is “a clearing house for copyright
`owners and users” that facilitates the negotiation of
`licences and the monitoring and enforcement of
`infringements where it would be impractical for individual
`copyright owners to do so on their own. Broadcast Music,
`Inc. v. Columbia Broadcasting System, Inc. 441 U.S. 1, 5
`(1979). “[I]ts ... members grant it nonexclusive rights
`to license non-dramatic performances of their works,” id.,
`and the license includes “the ... enforcement against
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`unauthorized copyright use.” Id. at 20. Therefore, it is
`ASCAP, acting through its members, that is asking for the
`broad injunction here. Third, there is substantial and
`longstanding precedent for such broad injunctions in
`circumstances similar to those presented here. See, e.g.,
`Harrison Music Corp. v. Tesfaye, 293 F. Supp. 2d 80, 83
`(D.D.C. 2003) (Leon, J.); All Nations Music v. Christian
`Family Network, Inc., 989 F. Supp. 863 (W.D. Mich 1997)
`(Miles, J.); Cross Keys Publ. Co. v. Wee, Inc., 921 F.
`Supp. 479, 481 (W.D. Mich. 1995) (Quist, J.).
`Therefore the plaintiffs are entitled to an injunction
`prohibiting the defendants from directly or indirectly
`infringing on the copyright rights of all ASCAP members.
`
`***
`
`Because, without question, the plaintiffs have
`established a prima-facie case of copyright infringement
`of each of the 20 songs and the defendants have failed to
`offer valid defenses, summary judgment in favor of the
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`plaintiffs will be entered. The judgment will include an
`assessment of a $ 5,000 statutory fee for each of the 20
`infringements, for a total of $ 100,000.00 (20 x $ 5,000
`= $ 100,000.00), along with appropriate injunctive relief.
`DONE, this the 8th day of June, 2007.
`
` /s/ Myron H. Thompson
`UNITED STATES DISTRICT JUDGE