Case3:14-cv-01190-JD Document25 Filed10/10/14 Page1 of 6
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 14-cv-01190-JD
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`ORDER GRANTING MOTION FOR
`DEFAULT JUDGMENT
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`Re: Dkt. No. 18
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`BROADCAST MUSIC, INC., et al.,
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`Plaintiffs,
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`v.
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`JMN RESTAURANT MANAGEMENT
`CORP., et al.,
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`Defendants.
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`The plaintiffs -- Broadcast Music, Inc. (“BMI”) and eight copyright owners -- have moved
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`for a default judgment against defendants JMN Restaurant Management Corp. (“JMN”) and Saki
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`Kavounaris on six claims of copyright infringement. The Court grants the motion.
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`I. BACKGROUND
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`BMI is a non-profit company in the copyright licensing business. Dkt. No. 18-1 ¶ 4; Dkt.
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`No. 18-1 ¶¶ 2-4. The complaint alleges that it has the right to license the public performance of
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`approximately 8.5 million musical compositions, including the six at issue in this case. Dkt. No. 1
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`¶ 4. The owners of the copyrights to those six compositions comprise the remaining plaintiffs. Id.
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`¶ 5.
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`Defendants JMN and Kavounaris run Spin-A-Yarn Restaurant, located in Fremont,
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`California. Dkt. 1 ¶¶ 14-18; Dkt. No. 18-2 ¶ 3. According to plaintiffs, the six compositions at
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`issue in this case have been publicly performed at the restaurant without plaintiffs’ permission.
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`Dkt. No. 1 ¶ 20; Dkt. 18-2 ¶¶ 3-4. Starting on July 29, 2009, BMI began sending letters to the
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`restaurant requesting that the defendants enter into a licensing agreement. Dkt. No. 18-2 ¶ 3.
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`Over the next four years, BMI sent at least 28 letters requesting a license, none of which met with
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`a response. Id. ¶¶ 3, 5. Starting June 14, 2010, BMI began sending the defendants a number of
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`cease-and-desist letters, which also went unanswered. Id. ¶ 6. The plaintiffs did, however,
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`Case3:14-cv-01190-JD Document25 Filed10/10/14 Page2 of 6
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`manage to talk to Kavouniaris over the phone 21 times. Id. ¶ 8.
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`On October 18, 2013, BMI took the further step of sending a researcher to the restaurant to
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`make a recording of the songs that were being played in the restaurant. Id. ¶¶ 10-11. Analysis of
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`the recording revealed that the six compositions at issue here were among those played. Dkt. 18-3
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`at 7-10.
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`Plaintiffs sued for copyright infringement with respect to the six compositions on March
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`13, 2014. The complaint, summons, and related documents were left at the restaurant and mailed
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`on March 19, 2014 (for JMN) and again on March 27, 2014 (for Kavouniaris). Neither defendant
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`ever appeared or answered. Plaintiffs requested that the clerk enter default on May 13, 2014,
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`which the clerk did two days later. Dkt. Nos. 13-14. On July 1, 2014, plaintiffs filed the motion
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`for default judgment that is the subject of this order. Dkt. No. 18.
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`II. DISCUSSION
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`A. Jurisdiction
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`Before turning to the merits, the Court is obliged to consider whether jurisdiction is proper.
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`See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (holding that in a default judgment proceeding,
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`“a district court has an affirmative duty to look into its jurisdiction over both the subject matter
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`and the parties”). The Court finds that it is. The Court has subject-matter jurisdiction to hear
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`cases that, like this one, arise under the United States Copyright Act. 28 U.S.C. § 1338(a). And
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`the Court has personal jurisdiction over defendants because the restaurant they operate (where the
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`alleged infringement occurred) is located in California. Dkt. No. 1 ¶¶ 14, 17.
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`The defendants were properly served. Service on an individual is proper if it is done by
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`“following state law for serving a summons in an action brought in courts of general jurisdiction
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`in the state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1).
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`Service on a corporation, like JMN, may be performed “in the manner prescribed by Rule 4(e)(1)
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`for serving an individual.” Fed. R. Civ. P. 4(h)(1)(A). California law allows service of an
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`individual “by leaving a copy of the summons and complaint during usual office hours in his or
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`her office … and by thereafter mailing a copy of the summons and complaint by first-class mail,
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`postage prepaid to the person to be served at the place where a copy of the summons and
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`complaint were left.” Cal. Code Civ. P. § 415.20. Service is then deemed complete on the tenth
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`day after mailing. Id. Applying these rules here, service on Kavouniaris was effected on April 7,
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`2014, ten days after March 27, 2014, when the complaint and summons were left for him with an
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`employee at the restaurant and mailed to him at the restaurant’s address. Service on JMN was
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`effected on March 31, 2014.
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`B. Default Judgment
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`Under FRCP 55(b)(2), a party may apply to the Court for entry of judgment by default.
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`“The district court's decision whether to enter a default judgment is a discretionary one.” Aldabe v.
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`Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The Court may consider the following factors in
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`deciding whether to grant a motion for default judgment:
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`(1) the possibility of prejudice to plaintiff, (2) the merits of
`plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4)
`the sum of money at stake in the action, (5) the possibility of a
`dispute concerning the material facts, (6) whether the default was
`due to excusable neglect, and (7) the strong policy underlying the
`Federal Rules of Civil Procedure favoring decisions on the merits.
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`Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
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`1. The Merits of the Claim and the Sufficiency of the Complaint
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`The second and third Eitel factors -- the merits of the claim and the sufficiency of the
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`complaint -- are generally considered together because after the entry of default, well-pleaded
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`factual allegations in the complaint are taken as true, except as to the amount of damages. Fair
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`Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002).
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`The allegations in plaintiffs’ complaint, taken as true, make out a claim for copyright
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`infringement. To succeed on a claim for copyright infringement, a plaintiff (1) “must show
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`ownership of the allegedly infringed material,” and (2) “must demonstrate that the alleged
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`infringers violate[d] at least one exclusive right granted to copyright holders under 17 U.S.C. §
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`106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007).
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`With respect to ownership, the complaint alleges that at least one plaintiff owns each of the
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`musical compositions at issue and that BMI is currently the licensor of the public performance
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`rights to each of the works. Dkt. No. 1 ¶ 24. And with respect to violating section 106, the
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`Case3:14-cv-01190-JD Document25 Filed10/10/14 Page4 of 6
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`complaint alleges that defendants publicly performed the six compositions without authorization.
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`Id. ¶ 20; 17 U.S.C. § 106(4) (securing to owners of copyrights in musical works the right “to
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`perform the copyrighted work publicly”). The allegations in the complaint therefore add up to a
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`valid claim for copyright infringement.
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`2. The Remaining Eitel Factors
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`The remaining factors, on balance, also weigh in favor of granting default judgment. The
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`plaintiffs will be prejudiced if default judgment is not granted because they will be left with no
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`way to prevent or recover for the defendants’ continued infringement. The amount of money at
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`stake (plaintiffs seek $36,000) is in the same ballpark as awards in other similar cases, and not
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`high enough to militate against granting a default judgment. See, e.g., Broadcast Music, Inc. v.
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`Paden, No. 5:11-02199-EJD, 2011 WL 6217414, at *5 (N.D. Cal. Dec. 14, 2011) (awarding
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`statutory damages of $21,000 for three infringements). Because defendants have not appeared,
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`there is no indication that their default is due to excusable neglect, that the material facts are
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`subject to dispute, or that a decision on the merits will be possible. See Broadcast Music, Inc. v.
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`Kiflit, No. 12-cv-00866-LHK, 2012 WL 4717852, at *3 (N.D. Cal. Oct. 2, 2012). All in all,
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`default judgment is warranted in light of the Eitel factors.
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`C. Plaintiffs’ Requested Relief
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`1. Statutory Damages
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`Under 504(c) of the Copyright Act, a plaintiff may elect to recover statutory damages
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`instead of actual damages, and plaintiffs here have chosen to do so. Ordinarily, a district court
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`may award damages of between $750 and $30,000 per copyright infringement. But where the
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`infringement is willful, a district court may award enhanced statutory damages of up to $150,000
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`per infringement. District courts have “wide discretion in determining the amount of statutory
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`damages to be awarded, constrained only by the specified maxima and minima.” Harris v. Emus
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`Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984).
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`In Sailor Music v. IML Corp., the court noted that, based on a survey of statutory damages
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`awards throughout the country provided by the plaintiffs in that case, “courts typically award three
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`times the amount of a properly purchased license for each infringement.” 867 F. Supp. 565, 570
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`Case3:14-cv-01190-JD Document25 Filed10/10/14 Page5 of 6
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`(E.D. Mich. 1994). This rule of thumb has been applied in later decisions. See, e.g., Kiflit, 2012
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`WL 4717852, at *4 (N.D. Cal. Oct. 2, 2012) (awarding statutory damages of “slightly more than
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`three times the cost of the estimated licensing fee”); Broadcast Music, Inc. v. TLM Investments,
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`P.L.C., No. 09-cv-8131, 2010 WL 2891524, at *5-*6 (D. Ariz. Jul. 21, 2010) (awarding statutory
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`damages of “approximately three times the licensing fees that would have been due”); Broadcast
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`Music, Inc. v. R Bar of Manhattan, 919 F. Supp. 656, 660 (S.D.N.Y. 1996) (collecting cases
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`showing statutory damages of three times licensing fees, and awarding five times the licensing
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`fee).
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`Here, BMI claims that it would have received $11,112.50 if defendants had agreed to take
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`a license. Dkt. No. 18-2 ¶ 15. The statutory damage award it seeks -- $36,000.00, or $6,000.00
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`per infringement -- is slightly more than three times the license fees it would have recovered. The
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`Court concludes that $36,000.00 in statutory damages is reasonable.
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`2. Injunctive Relief
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`Plaintiffs seek to enjoin defendants and their employees from infringing BMI’s copyrights.
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`The Copyright Act allows a Court to grant injunctions “on such terms as it may deem reasonable
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`to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). The fact that defendants
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`have continued to violate plaintiffs’ copyrights despite years of warnings suggests that, absent an
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`injunction, they will go on doing so -- a conclusion bolstered by the fact that the defendants have
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`not responded to plaintiffs’ allegations in this Court. The Court will enter the following
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`injunction:
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`Defendants and their agents, servants, employees, and all persons
`acting under their permission and authority, are enjoined from
`directly or indirectly infringing plaintiffs’ rights under federal or
`state law in any copyrighted musical composition, whether now in
`existence or later created, that is owned or controlled by plaintiffs
`(or any parent, subsidiary, or affiliate record label of plaintiffs), or
`that plaintiffs have the right to license, except pursuant to a lawful
`license or with the express authority of plaintiffs.
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`3. Attorneys’ Fees and Costs
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`Plaintiffs also seek $4,117.00 in attorneys’ fees and $640.00 in costs. Dkt. No. 18-4 ¶ 8.
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`Attorneys’ fees and costs are recoverable under the Copyright Act. 17 U.S.C. § 505. The Court
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`Case3:14-cv-01190-JD Document25 Filed10/10/14 Page6 of 6
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`has reviewed both the hours billed and the attorneys’ hourly rates and finds them reasonable. Dkt.
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`No. 18-4 ¶¶ 8-12. The Court will therefore grant plaintiffs $4,757.00 in fees and costs.
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`4. Interest on the Judgment
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`The Court grants plaintiffs’ request for interest on the judgment from the date of this
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`judgment. 28 U.S.C. § 1961.
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`III. CONCLUSION
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`For the reasons given above, the Court grants plaintiffs’ motion for default judgment.
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`Judgment will be entered in favor of Broadcast Music, Inc., and the other plaintiffs, and against
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`defendants JMN Restaurant Management Corp. d/b/a Spin-a-Yarn Restaurant and Saki
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`Kavouniaris, in the amount of $40,757.00. Plaintiffs are responsible for serving this injunction on
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`defendants.
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`IT IS SO ORDERED.
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`Dated: October 9, 2014
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`______________________________________
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`JAMES DONATO
`United States District Judge
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