Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 1 of 13 PageID #: 367
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`SOUTHEASTERN DIVISION
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`No. 1:03-CV-124 CAS
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`HERBILICIOUS MUSIC, et al.,
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` Plaintiffs,
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` v.
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`JFM INVESTMENTS, INC., et al.,
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` Defendants.
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`MEMORANDUM AND ORDER
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`This matter is before the court on plaintiffs' motion for summary judgment. Defendant Pete
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`Katsaliros filed a memorandum in opposition. Plaintiffs filed a reply. For the following reasons, the
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`Court will grant plaintiffs' motion for summary judgment.
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`I. Introduction
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`Plaintiffs Herbilicious Music, Virginia Beach Music, Gold Daddy Music, J. Albert & Son
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`(USA), Inc., EMI April Music, Inc., Purple Rabbit Music, Varry White Music, EX VW, Inc., and
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`Loc' Out Music filed this copyright infringement action against defendants JFM Investments, Inc. and
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`Pete Katsaliros. Plaintiffs later voluntarily dismissed their claims against JFM Investments, Inc.,
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`leaving Katsaliros as the only remaining defendant. In their First Amended Complaint, plaintiffs
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`allege that Katsaliros infringed their respective copyrights to four compositions by giving public
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`performances of those compositions without the plaintiffs' permission.
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`Plaintiffs filed a motion for summary judgment and requested injunctive relief, statutory
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`damages of $60,000, costs, and attorney's fees. Katsaliros does not deny that he infringed plaintiffs'
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`copyrights, rather he asserts that the damages are improper. First, Katsaliros asserts that injunctive
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`relief is unnecessary because he no longer operates a lounge or bar. Katsaliros states that plaintiffs'
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`statutory damages request is excessive because the violation was not knowing and willful and
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`plaintiffs cannot hold him liable for fees due before he owned the property.
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`II. Summary Judgment Standard
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`This Court must grant summary judgment if, based upon the pleadings, admissions,
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`depositions and affidavits, there exists no genuine issue of material fact and the moving party is
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`entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
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`317, 322 (1986); Board of Education, Island Trees v. Pico, 457 U.S. 853, 863 (1982). The moving
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`party must initially demonstrate the absence of an issue for trial. Celotex Corp., 477 U.S. at 323.
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`Any doubt as to the existence of a material fact must be resolved in favor of the party opposing the
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`motion. Board of Education v. Pico, 457 U.S. at 863. Nevertheless, once a motion is properly made
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`and supported, the non-moving party may not rest upon the allegations in his pleadings but must
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`instead set forth specific facts showing that there is a genuine issue of material fact for trial. Fed. R.
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`Civ. P. 56(e); Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).
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`III. Discussion
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`A. Facts
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`The Court reviewed plaintiffs' statement of undisputed material facts and defendant's
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`statement of disputed material facts. The Court finds that there are no genuine issues of material fact.
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`In accordance with Local Rule 4.01(E), all facts set forth in plaintiffs' statement of undisputed
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`material facts are deemed admitted if they were not specifically controverted by the defendant. See
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`E.D. Mo. L.R. 4.01(E). Also, only facts supported by evidence in the record will be deemed to be
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`true. For purposes of summary judgment, the Court finds the following facts to be true.
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`Plaintiffs are members of the American Society of Composers, Authors, and Publishers
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`("ASCAP"). (Jenkins Aff. ¶ 4). At the time of the alleged infringement and at the present time,
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`plaintiffs are the copyright owners to the musical compositions, (1) "Wild Thing," (2) "Give Me One
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`Reason," (3) "You Shook Me All Night," and (4) "Pony."1 (Jenkins Aff. ¶ 3, Exs. A-D). ASCAP
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`is an unincorporated membership association, whose members write and publish musical
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`compositions. (Demerritt Aff. ¶ 3). As ASCAP members, plaintiffs have granted ASCAP a non-
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`exclusive license to authorize public performances of the members' copyrighted songs. Id. ASCAP
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`contacts owners and operators of establishments that perform ASCAP members' music to advise them
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`of their obligations under the copyright law and to offer them ASCAP licenses. (Demerritt Aff. ¶ 4).
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`The Three Rivers Inn is located at 2115 N. Westward Boulevard in Poplar Bluff, Missouri.
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`(Am. Compl. ¶ 4). Defendant Katsaliros was hired as manager of the Three Rivers Inn (formerly
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`known as the Holiday Inn) in 1993. (Katsaliros Aff. ¶ 3). At the time Katsaliros became manager,
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`the Three Rivers Inn owner was JFM Investments. (Katsaliros Aff. ¶ 4). JJ's Lounge is a bar at the
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`Three Rivers Inn. (Katsaliros Dep. 35:5-6). Katsaliros purchased the hotel in 1999 or early 2000.
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`(Katsaliros Aff. ¶ 9). Katsaliros did not notify ASCAP of the change in ownership from JFM
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`Investments to himself. (Katsaliros Dep. 47:12-15).
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`Liquor was sold at JJ's Lounge. (Katsaliros Dep. 35:2-5). Katsaliros filed an application for
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`renewal of the liquor license for JJ's Lounge. (Katsaliros Dep. 35:13-15; Copeland Aff. Ex. 4). The
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`liquor license renewal application for the bar filed by Katsaliros was filed in the name of JFM
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`Investments and stated that Katsaliros was president and managing officer of the corporation.
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`(Copeland Aff. Ex. 4). Katsaliros hired disc jockeys and people to play karaoke with their own
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`equipment as part of the entertainment at JJ's Lounge. (Katsaliros Dep. 21:13-22).
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`1The compositions were as follows: "Wild Thing" as performed by Tone Loc, "Give Me
`One Reason" as performed by Tracy Chapman, "You Shook Me All Night," as performed by
`ACDC, and "Pony" as performed by Ginuwine.
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`In May 1994, Katsaliros, as manager for JFM Investments, signed an ASCAP License
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`Agreement on behalf of JFM Investments. The term of the License Agreement was from January 1,
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`1994 to December 31, 1998. The annual expense reports during this time period, upon which license
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`fees are calculated, were filed by the hotel with "Pete Katsaliros, General Manager" shown as the
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`signature on behalf of the licensee. (Demerritt Aff. ¶ 8). The hotel and ASCAP entered into an
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`indefinite interim extension until April 30, 2000 and then until May 31, 2000. (Demerritt Aff. ¶¶ 9-
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`12). ASCAP mailed letters dated April 21, 2000 and May 31, 2000 to the hotel advising that the
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`hotel's license with ASCAP would expire on May 31, 2000. (Demerritt Aff. ¶ 12). The May 31,
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`2000 letter enclosed a new ASCAP license agreement for the hotel facility for execution, but that new
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`license agreement was never returned to ASCAP. (Demerritt Aff. ¶ 13). After the license was
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`terminated effective May 31, 2000, ASCAP sent letters dated October 30, 2001, June 3, 2002, and
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`June 26, 2002 that offered to reinstate the license if the fees due at the termination of the license
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`agreement were paid and a new license agreement was executed. (Demerritt Aff. ¶ 14, Exs. 1-3).
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`ASCAP hired an investigator to visit JJ's Lounge on August 3, 2002, and November 9, 2002,
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`to determine if Katsaliros was publicly performing ASCAP members' music. (Demerritt Aff. ¶ 16).
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`The investigator, Russell W. Corbin, heard four musical compositions during those two visits: (1)
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`"Wild Thing," (2) "Give Me One Reason," (3) "You Shook Me All Night," and (4) "Pony." (Am.
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`Compl., Ex. A). During the August 3, 2002 visit, a disc jockey played music via compact discs
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`played through four speakers near the dance floor to the lounge. (Demerritt Aff. ¶ 18). There was
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`a cover charge to enter JJ's Lounge and alcoholic beverages were sold to patrons. (Id.) There were
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`27 patrons present when Corbin entered JJ's lounge and at one point, there were 70 patrons present.
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`(Id.) During the November 9, 2002 visit, there was a disc jockey who played music via compact discs
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`played through four speakers near the dance floor to the lounge. (Demeritt Aff. ¶ 19). There were
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`46 patrons present at JJ's Lounge when Corbin arrived and at one point there were more than 80
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`patrons present. (Id.) Katsaliros has no knowledge of what songs were performed at the Three
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`Rivers Inn and JJ's Lounge on August 2, 2002 and November 9, 2002. (Katsaliros Dep. 15:3-24;
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`29:13-22). Katsaliros was not at the lounge on those nights. (Id.).
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`At the time the amended complaint and answer were filed, Katsaliros controlled, operated,
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`and maintained the Three Rivers Inn. (Am. Compl. ¶ 4, Answer to Am. Compl. ¶ 4). Katsaliros
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`closed the Three Rivers Inn and JJ's Lounge in March 2004 and the entire hotel facility was sold in
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`May 2004. (Katsaliros Aff. ¶ 29).
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`B. Copyright Infringement
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`Copyright owners have the exclusive right to perform or authorize others to perform their
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`copyrighted works. 17 U.S.C. § 106. "Anyone who violates any of the exclusive rights of the
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`copyright owner . . . is an infringer of the copyright . . . ." 17 U.S.C. § 501(a). Plaintiffs must prove
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`four elements to assert copyright infringement against Katsaliros: (1) authorship of the songs, (2)
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`ownership of the copyrights, (3) compliance with the statutory requirements to obtain the copyrights,
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`and (4) unauthorized public performance. Unicity Music, Inc. v. Omni Communications, Inc., 844
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`F. Supp. 504, 507 (E.D. Ark. 1994). "A prima facie case as to the first three elements may be made
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`by submitting certified copies of copyright registration certificates and any subsequent assignments."
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`Cross Keys Publ'g Co. v. LL Bar T Land & Cattle Co., 887 F. Supp. 219, 222 (E.D. Mo. 1995)
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`(citing Van Halen Music v. Palmer, 626 F. Supp. 1163, 1165 (W.D. Ark. 1986)). Plaintiffs have
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`provided certified copies of the copyright registration certificates and any subsequent assignments.
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`(Jenkins Aff., Exs. A-D). Katsaliros has not challenged the validity of the copyright registration
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`certificates and assignments submitted by the plaintiffs. Therefore, the Court finds that plaintiffs have
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`established the first three elements of their prima facie case.
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`As to the fourth element, plaintiffs must establish that there was an unauthorized public
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`performance of the copyrighted works.
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`To perform or display a work "publicly" means to (1) to perform or display it at a
`place open to the public or at any place where a substantial number of persons outside
`of a normal circle of a family and its social acquaintances is gathered; or (2) to
`transmit or otherwise communicate a performance or display of the work to a place
`specified by clause (1) or to the public by means of any device or process, whether the
`members of the public capable of receiving the performance or display receive it in the
`same place or in separate places and at the same time or at different times.
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`17 U.S.C. § 101. "To 'transmit' a performance or display is to communicate it by any device or
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`process whereby images or sounds are received beyond the place from which they are sent." Id.
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`"Copyright infringement is in the nature of a tort, for which all who participate in the infringement
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`are jointly and severally liable." Cross Keys, 887 F. Supp. at 222 (citations omitted). The
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`requirements for a finding of vicarious liability for copyright infringement are the right and ability to
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`supervise the infringing activity and an obvious direct financial interest in exploitation of copyrighted
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`materials. RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 781 (8th Cir. 1988).
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`In this case, Katsaliros admits that on August 2, 2002, and November 9, 2002, the disc jockey
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`at JJ's lounge publicly performed the four songs at issue without authorization from ASCAP.
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`Katsaliros knew that he did not have a license for JJ's Lounge to perform ASCAP compositions and
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`knew that a license was necessary if those compositions were performed or transmitted at the bar.
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`Katsaliros had the right and ability to supervise the infringing activity and an obvious direct financial
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`interest in exploitation of copyrighted materials because the lounge received compensation from
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`patrons who paid to enter and drink at the establishment. Therefore, the Court finds that a prima
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`facie case for copyright infringement has been established. Accordingly, the Court will enter
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`summary judgment for the plaintiffs.
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`C. Damages
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`The only dispute in this case is the appropriate amount of damages to be awarded. Plaintiffs
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`request permanent injunctive relief, statutory damages in the amount of $60,000, $724.20 for costs,
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`and $19,607.59 for attorney's fees. Katsaliros asserts that permanent injunctive relief is unnecessary
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`and the amount of statutory damages sought is excessive.
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`1. Injunctive Relief
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`"Any court having jurisdiction of a civil action arising under [the Copyright Act] may . . .
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`grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain
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`infringement of a copyright." 17 U.S.C. § 502(a). "Once liability is established, courts will grant
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`permanent injunctions if there is a substantial likelihood of future infringements. Further, to prevent
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`future infringements of copyrights held by ASCAP members, courts have extended the injunction's
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`scope beyond individual plaintiffs' copyrights to reach any musical composition licensed through
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`ASCAP." Cross Keys, 887 F. Supp. at 223 (citations omitted). Plaintiffs seek a permanent injunction
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`enjoining defendant from performing any and all music in the ASCAP repertory without a license or
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`permission from the composer. In support, plaintiffs assert that Katsaliros was well aware of the
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`copyright licensing requirements and proceeded to engage in unlawful public performances of
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`copyrighted material. Further, plaintiffs contend that Katsaliros still has not obtained a license to
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`publicly perform their copyrighted works.
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`Katsaliros responds that because he no longer operates any lounge or bar or any other place
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`of business for public entertainment, accommodation, amusement, and refreshment, the threat of
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`future infringement is not substantial. Katsaliros states that his failure to obtain a license after he
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`bought the hotel was the result of a dispute about whether he was responsible for licensing fees owed
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`by JFM Investments. Katsaliros asserts that he tried to obtain a new licensing agreement, but ASCAP
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`took his money and applied it to the debt owed by JFM Investments. (Katsaliros Aff. ¶¶ 15-18, 20).
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`Katsaliros does not believe that he has personal liability for the licensing fees incurred by JFM
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`Investments before he bought the facility. (Katsaliros Aff. ¶ 20, 35). ASCAP would not issue
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`Katsaliros a renewed license unless Katsaliros paid audit and licensing fees due at the time the original
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`license was terminated. (Demerritt Aff. ¶ 14).
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`The Court finds that injunctive relief is appropriate in this case. The Court accepts
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`Katsaliros's statement that currently he does not own any lounge, bar, or any other place where
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`copyrighted works could be publicly performed, however Katsaliros could purchase such a facility
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`in the future. If the Court did not issue a permanent injunction at this time, Katsaliros could buy
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`another establishment and infringe on plaintiffs' or other ASCAP members' copyrights. Because
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`ASCAP and Katsaliros dispute whether Katsaliros owes license fees incurred by JFM Investments
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`prior to the year 2000, it is highly unlikely that Katsaliros could obtain a license to perform ASCAP's
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`music. The Court finds that because of the continuing dispute over the amount of fees due and the
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`inability of Katsaliros to obtain a license from ASCAP, a permanent injunction is necessary. The
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`Court will issue a injunction permanently enjoining and restraining Katsaliros from publicly
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`performing any copyrighted musical compositions in the ASCAP repertory without proper
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`authorization.
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`2. Statutory Damages
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`A copyright owner may elect to recover actual damages and profits or an award of statutory
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`damages for all infringements involved in the action, for a sum not less than $750 or more than
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`$30,000. 17 U.S.C. § 504(c)(1). The following factors may be considered in determining the
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`appropriate amount of statutory damages: (1) the expenses saved and profits reaped by defendants
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`in connection with the infringement, (2) revenues lost by plaintiffs, and (3) whether the infringement
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`was willful and knowing or accidental and innocent. Cross Keys, 887 F. Supp. at 224. District courts
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`have wide discretion in determining the size of a statutory damages award. Id. at 223.
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`Plaintiffs seek a statutory damages award of $15,000 per infringement for total damages of
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`$60,000. In support of their request, plaintiffs assert that (1) Katsaliros had personal knowledge of
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`copyright licensing requirements at the hotel facility, because he signed the ASCAP license in May
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`1994 as general manager; (2) the ASCAP license terminated on May 31, 2000 and ASCAP sent
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`numerous notices of the license termination; (3) Katsaliros was given repeated opportunities to
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`procure a license; and (4) Katsaliros remained unlicenced and infringed on plaintiffs' copyrights
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`depriving them of license fees in excess of $15,000. Further, plaintiffs claim that ASCAP incurred
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`expenses of $1,061.84 to obtain evidence of the infringing performances in this case.
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`In their calculation of fees, plaintiffs include licencing fees that were due under the licensing
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`agreement that terminated on May 31, 2000, plus license fees that would have been owed if the hotel
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`had been licensed from that time through the end of 2003, which is $15,021.70. Plaintiffs assert that
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`it is appropriate to consider the license fees owed from the 1993-1999 period, because Katsaliros was
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`the general manager of JFM Investments and hired a disc jockey and people to play karaoke.
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`Plaintiffs allege that Katsaliros had the right and ability to supervise musical performances and had
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`a direct financial interest in such activities that would subject him to vicarious liability with the
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`previous owner of the hotel. Plaintiffs estimate that they lost licensing fees totaling $8,335.00 from
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`1999 through the end of 2003. (Demerritt Aff. ¶ 34).
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`Katsaliros asserts that he did make an effort to pay for a renewed license agreement because
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`he forwarded ASCAP a payment of $2,116.00 in April 2000, but ASCAP applied it to the amount
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`owed by JFM Investments. Also, Katsaliros asserts that he forwarded requested expenditure
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`statements for the years 1999 through 2002, when requested to do so by plaintiffs' counsel.
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`Katsaliros asserts that there is no evidence that any ASCAP licensed music was publicly performed
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`on any occasion other than the two dates previously discussed. Katsaliros asserts that he is not liable
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`for statutory damages for the failure of prior owners to pay the balance due on the licensing
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`agreement from 1993 to 1999. Finally, Katsaliros states that an award of $60,000 is excessive.
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`The Court finds that the infringement was knowing and willful, but will only award statutory
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`damages in the amount of $13,000 ($2,000 per infringement and $5,000 for knowing and willful
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`infringement). To reach this sum, the Court first added the estimated licensing fees from 2000 to
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`2003 (2000--$1889.00; 2001-- $1730.00; 2002--$1537.00; 2003--$1568) for a total of $6,724.00.
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`(Demerritt Aff. ¶ 20). Then, the Court added the cost of the investigation ($1,061.84) to the
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`licensing fee total, which equals $7,785.84 or $1946.46 per infringement. Then, the Court added
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`$5,000 to the total because the infringement was willful and knowing. The Court rounded the total
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`to $13,000.00 (2,000 per infringement plus $5,000 because it was willful and knowing). Therefore,
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`defendant will be ordered to pay statutory damages in the amount of $13,000.00
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`In the exercise of its discretion, the Court will not award plaintiffs money for the amounts due
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`on the licensing agreement terminated in May 2000. Plaintiffs have cited no authority to support their
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`recovery of fees for an amount due on a contract as statutory damages in a copyright infringement
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`case. The basis of this action is the infringement of plaintiffs' copyrights regarding four musical
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`compositions in 2002. (Am. Compl. ¶¶ 1-2, 10-11). Plaintiffs have not alleged that Katsaliros
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`infringed their copyrights during the time period of 1993-1999. The Court has not found any case
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`where a defendant was held liable for copyright infringement because there was a balance due on a
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`licensing agreement. All of the cases found by the Court addressing vicarious liability held managers
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`or owners vicariously liable for their personal actions or those of their agents or employees for
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`infringing copyrights. See, e.g., Pinkham v. Sara Lee Corp. , 983 F.2d 824, 834 (8 th Cir. 1992)
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`(president-shareholder and independent agent held personally and vicariously liable for copyright
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`infringement because they had ability to supervise sale of copied books and made a profit);
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`RCA/Ariola, 845 F.2d at 781-82 (retailors held vicariously liable for employees' assistance to
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`customers in copying copyrighted material); Little Mole Music v. Spike Inv., 720 F. Supp. 751, 755-
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`56 (W.D. Mo. 1989) (partners of company held vicariously liable because they had right and ability
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`to license machine and misuse was for financial gain).
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`The Cross Keys case cited by plaintiffs does not provide support for recovery of the licensing
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`fees due under the terminated licensing agreement. In Cross Keys, the individual defendants admitted
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`in their answer that they shared joint responsibility for the control of the corporation, the acts
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`complained of were done with their active assistance, and they received a financial benefit from the
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`public performance of copyrighted work. Cross Keys, 887 F. Supp. at 223. The vicarious liability
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`of the Cross Keys defendants stemmed from the public performance of the copyrighted work. Even
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`if Katsaliros is responsible for the fees due on the terminated agreement, they are not recoverable here
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`and the Court will not use that amount to increase the statutory damages award.
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`3. Costs and Attorney's Fees
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`In an action under the Copyright Act, the Court in its discretion may award full recovery of
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`costs including a reasonable attorney's fee to the prevailing party. 17 U.S.C. § 505. "Among the
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`factors a district court can consider in deciding whether to award attorney's fees are 'frivolousness,
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`motivation, objective unreasonableness (both in the factual and the legal components in the case) and
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`the need in particular circumstances to advance considerations of compensation and deterrence.'"
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`Mary Ellen Enters., Inc. v. Camex, Inc.
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`, 68 F.3d 1065, 1072 (8 th Cir. 1995) (citing Fogerty v.
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`Fantasy, Inc., 510 U.S. 517, 534 n. 19 (1994)). "Bad faith or willfulness is not a prerequisite to an
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`award of attorney's fees." Mary Ellen, 68 F.3d at 1072.
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`Plaintiffs assert that Katsaliros's infringing actions necessitated bringing this lawsuit to protect
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`their copyrighted works. Further, plaintiffs contend that Katsaliros could have substantially reduced
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`the attorney's fees if he had accepted ASCAP's requests that he provide information, procure a
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`license, or settle this matter. Plaintiffs filed an affidavit with their reply memorandum requesting
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`attorney's fees in the amount of $19,607.59 and costs in the amount of $724.20. Katsaliros did not
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`directly address plaintiffs' request for attorney's fees.
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`The Court believes that an award of attorney's fees is appropriate in this case. Plaintiffs
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`should be compensated for bringing this action and an award of attorney's fees could deter future
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`infringing conduct. The affidavit submitted by plaintiffs with their reply memorandum does not set
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`forth the basis for the hourly rates or the experience of each person who performed the services. A
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`list of total hours per person is not sufficient and counsel should give some guidance as to what
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`services were provided. The Court will order plaintiffs to file a motion for attorney's fees and costs
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`within 15 days of the date of this order. In support of their motion for attorney's fees, plaintiffs'
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`counsel should provide an affidavit setting forth the number of hours counsel spent on each itemized
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`service pertaining to this matter, the hourly rate(s) used to arrive at the charges for those services,
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`the basis for such hourly rates, and the identity and experience of each person who performed the
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`relevant services.
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`IV. Conclusion
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`The Court will grant plaintiffs' motion for summary judgment. The Court will enter a
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`injunction permanently enjoining and restraining Katsaliros from publicly performing any copyrighted
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`musical compositions in the ASCAP repertory without proper authorization. The Court will grant
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`plaintiffs statutory damages in the amount of $13,000.00. Finally, the Court will award plaintiffs
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`costs and attorney's fees. The Court finds that the $13,000 in statutory damages and the assessment
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`of costs and attorney's fees will provide plaintiffs with a fair and just amount of damages. Plaintiffs
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`will be ordered to submit a motion for costs and attorney's fees with supporting documentation within
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`15 days of the date of this order.
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`Accordingly,
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`IT IS HEREBY ORDERED that plaintiffs' motion for summary judgment is GRANTED.
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`[Doc. 29].
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`IT IS FURTHER ORDERED that defendant Pete Katsaliros is permanently enjoined and
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`restrained from publicly performing any copyrighted musical compositions in the ASCAP repertory
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`without proper authorization.
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`IT IS FURTHER ORDERED that plaintiffs are awarded statutory damages in the amount
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`of Thirteen Thousand Dollars ($13,000.00).
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`IT IS FURTHER ORDERED that within fifteen (15) days of the date of this order, plaintiffs
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`shall file a motion for attorney's fees along with an affidavit setting forth the number of hours counsel
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`spent on each itemized service pertaining to this matter, the hourly rate(s) used to arrive at the
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`charges for those services, the basis for such hourly rates, and the identity and experience of each
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`person who performed the relevant services.
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`CHARLES A. SHAW
`UNITED STATES DISTRICT JUDGE
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`Dated this 6th day of June, 2005.
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