Case 5:11-cv-02879-JEO Document 12 Filed 11/08/11 Page 1 of 7
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`FILED
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` 2011 Nov-08 PM 03:47
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ALABAMA
`NORTHEASTERN DIVISION
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`Case No.: 5:11-cv-02879-JEO
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`))))))))))
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`BROADCAST MUSIC, INC., et al.,
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`Plaintiffs,
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`v.
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`CATFISH ENTERTAINMENT, INC.,
`et al.,
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`Defendants.
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`MEMORANDUM OPINION
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`This case is before the court on Defendants' Motion to Dismiss Plaintiffs' copyright
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`infringement action (doc. 5), filed September 16, 2011. The parties have been afforded an
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`opportunity to brief the relevant issues. Upon consideration, the undersigned hereby finds that
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`the motion to dismiss is due to be denied.
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`I.
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`FACTS AND PROCEDURAL HISTORY
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`Because this action is before the court on a motion to dismiss, the facts set forth in the
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`Complaint “are to be accepted as true and the court limits its consideration to the pleadings and
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`exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.
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`2000) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). Thus, the facts
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`that follow are those set forth in the Complaint.
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`Broadcast Music is a corporation organized and existing under the laws of the State of
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`New York. (Doc. 1 at 2 ¶ 3). It has been granted the right to license the public performance
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` All references to “Doc. ___” refer to the document numbers assigned by the Clerk of Court.
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` Defendant’ initial motion (doc. 5) did not include Defense counsel’s signature. On October 19, 2011,
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`Defendants’ filed an amended motion that included the proper signature (doc. 9).
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`Case 5:11-cv-02879-JEO Document 12 Filed 11/08/11 Page 2 of 7
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`rights in approximately 6.5 million copyrighted musical compositions. (Id.) The nineteen other
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`Plaintiffs to this suit are owners of at least one of the copyrights in the musical compositions that
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`are the subject of this lawsuit. (Id. at 2 ¶ 4).
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`Defendant Catfish Entertainment is a corporation organized and existing under the laws
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`of the state of Alabama that operates, maintains, and controls an establishment known as The
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`Crossroads. (Id. at 5 ¶ 24). Catfish has a direct financial interest in The Crossroads. (Id. at 6 ¶
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`26). In connection with the operation of The Crossroads, Plaintiffs allege that Catfish publicly
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`performs musical compositions and/or causes musical compositions to be publicly performed.
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`(Doc. 1 at 5 ¶ 25).
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`Defendants James Hunter and Jeffrey Goltz are officers of Catfish and are responsible for
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`the operation and management of Catfish and The Crossroads. (Id. at 6 ¶¶ 27, 29). Plaintiffs
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`allege that both James Hunter and Jeffrey Goltz have the right and ability to supervise the
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`activities of Catfish and that they both have a direct financial interest in both Catfish and The
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`Crossroads. (Id. at 6 ¶¶ 28, 30).
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`On August 17, 2011, Plaintiffs filed suit alleging copyright infringement under the United
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`States Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq. (Id. at 2 ¶ 1). Specifically,
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`Plaintiffs claim thirteen acts of willful copyright infringement, based upon Catfish’s
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`unauthorized public performance of musical compositions from Plaintiffs’ repertoire. (Doc. 1 at
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`6, 7 ¶ 32). For each work, Plaintiffs allege that Catfish performed and/or caused the musical
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`compositions to be publicly performed at The Crossroads without a license or permission to do
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`so. (Id. at 8 ¶ 37). Plaintiffs further allege that the specific acts of copyright infringement, as
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`well as Catfish’s entire course of conduct, have caused and are causing Plaintiffs great and
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`Case 5:11-cv-02879-JEO Document 12 Filed 11/08/11 Page 3 of 7
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`incalculable damage. (Id. at 8 ¶ 38).
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`In their prayer for relief, Plaintiffs seek to enjoin and restrain Catfish from infringing the
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`copyrighted musical compositions licensed by Plaintiffs, pursuant to 17 U.S.C. § 502, and for
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`statutory damages pursuant to 17 U.S.C. § 505(c). (Id. at 9 ¶¶ I, II). Further, Plaintiffs seek
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`reasonable attorney’s fees pursuant to 17 U.S.C. § 505, and for further relief as is just and
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`equitable. (Id. at 9 ¶¶ III, IV). On September 16, 2011, Defendants moved to dismiss all claims
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`pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b). (Doc. 5).
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`STANDARD OF REVIEW
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`Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard
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`Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an
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`unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
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`129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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`Mere “labels and conclusions or a formulaic recitation of the elements of a cause of action” are
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`insufficient. Iqbal, 129 S. Ct. at 1949 (internal citations and quotation marks omitted). “Nor
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`does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
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`enhancement.’” Id. at 1949 (citing Twombly, 550 U.S. at 557).
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`FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) permits dismissal when a complaint fails
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`to state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint
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`must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
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`on its face.” Iqbal, 129 S. Ct. at 1949 (internal citations and quotation marks omitted). A
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`complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that
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`Case 5:11-cv-02879-JEO Document 12 Filed 11/08/11 Page 4 of 7
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. (citation omitted). The complaint must establish “more than a sheer possibility that
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`a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations
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`must be enough to raise a right to relief above the speculative level.”). Ultimately, this inquiry is
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`a “context-specific task that requires the reviewing court to draw on its judicial experience and
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`common sense.” Iqbal, 129 S. Ct. at 1950.
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`ANALYSIS
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`The United States Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq., grants a
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`copyright owner the exclusive right to perform or authorize others to perform a copyrighted
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`musical work. 17 U.S.C. § 106(4). “To establish a prima-facie copyright infringement case for a
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`musical composition, a plaintiff may prove (1) ownership of a valid copyright and (2) ‘public
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`performance’ of the copyrighted work without authorization.” Simpleville Music v. Mizell, 451
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`F. Supp. 2d 1293, 1295 (M.D. Ala. 2006) (citing 17 U.S.C. § 106(4) (subject to specific
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`exclusions outlined in the Copyright Act, “the owner of copyright ... has the exclusive rights . . .
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`in the case of ... musical ... works to perform the copyrighted work publicly”) and Feist
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`Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361 (1991) (“To establish
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`infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying
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`of constituent elements of the work that are original.”)).
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`Defendants contend that they do not publicly perform musical compositions and/or cause
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`musical compositions to be publicly performed. They assert that all music performed at The
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`Crossroads is chosen by the performing artists, and that they have no ability to direct the
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`performers in this regard. Under this premise, Defendants maintain that the Plaintiffs have no
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`Case 5:11-cv-02879-JEO Document 12 Filed 11/08/11 Page 5 of 7
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`cause of action under Rule 12 of the FEDERAL RULES OF CIVIL PROCEDURE. Nowhere in their
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`motion to dismiss do Defendants cite authority to support this position.
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`Traditional principles of vicarious liability apply in copyright infringement actions.
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`Dream Custom Homes, Inc. v. Modern Day Const., Inc., 773 F. Supp. 2d 1288, 1310 (M.D. Fla.
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`2011). Thus, one may be liable for copyright infringement even though he has not himself
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`performed the protected composition. Major Bob Music v. Stubbs, 851 F. Supp. 475, 480 (S.D.
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`Ga. 1994) (citing Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159,
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`1161–62 (2d Cir. 1971). “An individual, including a corporate officer, who has the ability to
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`supervise infringing activity and has a financial interest in that activity, or who personally
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`participates in that activity” can be held personally liable for the infringement. S. Bell Tel. & Tel.
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`Co. v. Associated Tel. Directory Publishers, 756 F.2d 801, 811 (11th Cir. 1985) (quoting
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`Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 517 F. Supp. 900, 904 (S.D.N.Y. 1981));
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`Morley Music Co. v. Café Cont’l, Inc., 777 F. Supp. 1579, 1582 (S.D. Fla. 1991) (“Liability may
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`also extend vicariously to corporate officers who have a dominant influence in a corporation and
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`who have the capacity to control the acts of that corporation.”). More specifically, where a
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`copyright infringement case involves live performances by musicians or disc jockeys, the owner
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`of the establishment may be subject to vicarious liability for the infringement if it has “the right
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`and ability to supervise the infringing activity and also has a direct financial interest in such
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`activities.” New World Music Co. v. Tampa Bay Downs, Inc., 2009 WL 35184, *4 (M.D. Fla.
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`Jan. 6, 2009) (quoting Gershwin Publ’g Corp., 443 F.2d 1159 at 1161–62). Vicarious liability
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`may be imposed even when the controlling individual has no knowledge of the infringement.
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`Major Bob Music, 851 F. Supp. at 480.
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`Case 5:11-cv-02879-JEO Document 12 Filed 11/08/11 Page 6 of 7
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`Plaintiffs’ Complaint clearly alleges that Defendants have the right and ability to control
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`the activities of The Crossroads. (Doc. 1 at 6 ¶¶ 24-30). The Complaint also alleges that the
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`named defendants certainly derive a financial benefit from the operation of The Crossroads and
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`the activities which take place there. (Id.) Accordingly, Defendants may be held vicariously
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`liable for the copyright infringement of other performers at their establishment, and their motion
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`to dismiss based on Plaintiffs’ alleged failure to state a claim is due to be denied.
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`Defendants further argue that the actual performers of the alleged copyright infringement
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`are necessary parties to this suit, and that their joinder is indispensable to the just adjudication of
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`this action. Defendants assert that Plaintiffs must name and serve all performers alleged to have
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`violated the copyright act before Plaintiffs can continue with this action. Again, Defendants do
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`not support this position with legal precedent.
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`FEDERAL RULE OF CIVIL PROCEDURE 19(a) provides that a person must be joined as a
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`party to the action if (1) in the person’s absence complete relief cannot be afforded among those
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`already parties or (2) the person claims an interest relating to the subject of the action. FED. R.
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`CIV. P. 19(a)). “[U]nder the ... principle of joint and several liability, ‘which governs not only
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`common law torts but also the federal statutory tort of copyright infringement[,] the victim of a
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`tort is entitled to sue any of the joint tortfeasors and recover his entire damages from that
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`tortfeasor.’” Microsoft Corp. v. Cietdirect.com LLC, 08-60668-CIV, 2008 WL 3162535 at *7
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`(S.D. Fla. Aug. 5, 2008) (quoting Salton, Inc. v. Philips Domestic Appliances & Personal Care
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`B. V., 391 F.3d 871, 877 (7th Cir. 2004)). Accordingly, “since joint tortfeasors are jointly and
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`severally liable, the victim of copyright infringement may sue as many or as few of the alleged
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`wrongdoers as he chooses; those left out of the lawsuit are not indispensable parties.” Id. at *6
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`Case 5:11-cv-02879-JEO Document 12 Filed 11/08/11 Page 7 of 7
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`(quoting Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d
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`200, 207 (D.C. Cir. 1981)).
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`Here, Plaintiffs need not join all the parties against whom they may have a cause of action
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`into one suit. Plaintiffs are free to exclude the actual performers as potential defendants and
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`proceed with their claims against Catfish. Accordingly, Defendants’ motion to dismiss for
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`failure to join a necessary or indispensable party is denied.
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`CONCLUSION
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`Based on the foregoing, the court finds that Defendants’ Motion to Dismiss (Doc. 5) is
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`due to be denied. A separate order will be entered.
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`DONE this 8th day of November, 2011.
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`______________________________
`JOHN E. OTT
`United States Magistrate Judge
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