`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`SOUTHEASTERN DIVISION
`
`No. 1:03-CV-124 CAS
`
`))
`
`))
`
`)
`)
`
`))
`
`)
`
`HERBILICIOUS MUSIC, et al.,
`
` Plaintiffs,
`
` v.
`
`JFM INVESTMENTS, INC., et al.,
`
` Defendants.
`
`MEMORANDUM AND ORDER
`
`This matter is before the court on plaintiffs' motion for summary judgment. Defendant Pete
`
`Katsaliros filed a memorandum in opposition. Plaintiffs filed a reply. For the following reasons, the
`
`Court will grant plaintiffs' motion for summary judgment.
`
`I. Introduction
`
`Plaintiffs Herbilicious Music, Virginia Beach Music, Gold Daddy Music, J. Albert & Son
`
`(USA), Inc., EMI April Music, Inc., Purple Rabbit Music, Varry White Music, EX VW, Inc., and
`
`Loc' Out Music filed this copyright infringement action against defendants JFM Investments, Inc. and
`
`Pete Katsaliros. Plaintiffs later voluntarily dismissed their claims against JFM Investments, Inc.,
`
`leaving Katsaliros as the only remaining defendant. In their First Amended Complaint, plaintiffs
`
`allege that Katsaliros infringed their respective copyrights to four compositions by giving public
`
`performances of those compositions without the plaintiffs' permission.
`
`Plaintiffs filed a motion for summary judgment and requested injunctive relief, statutory
`
`damages of $60,000, costs, and attorney's fees. Katsaliros does not deny that he infringed plaintiffs'
`
`copyrights, rather he asserts that the damages are improper. First, Katsaliros asserts that injunctive
`
`relief is unnecessary because he no longer operates a lounge or bar. Katsaliros states that plaintiffs'
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 2 of 13 PageID #: 368
`
`statutory damages request is excessive because the violation was not knowing and willful and
`
`plaintiffs cannot hold him liable for fees due before he owned the property.
`
`II. Summary Judgment Standard
`
`This Court must grant summary judgment if, based upon the pleadings, admissions,
`
`depositions and affidavits, there exists no genuine issue of material fact and the moving party is
`
`entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
`
`317, 322 (1986); Board of Education, Island Trees v. Pico, 457 U.S. 853, 863 (1982). The moving
`
`party must initially demonstrate the absence of an issue for trial. Celotex Corp., 477 U.S. at 323.
`
`Any doubt as to the existence of a material fact must be resolved in favor of the party opposing the
`
`motion. Board of Education v. Pico, 457 U.S. at 863. Nevertheless, once a motion is properly made
`
`and supported, the non-moving party may not rest upon the allegations in his pleadings but must
`
`instead set forth specific facts showing that there is a genuine issue of material fact for trial. Fed. R.
`
`Civ. P. 56(e); Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).
`
`III. Discussion
`
`A. Facts
`
`The Court reviewed plaintiffs' statement of undisputed material facts and defendant's
`
`statement of disputed material facts. The Court finds that there are no genuine issues of material fact.
`
`In accordance with Local Rule 4.01(E), all facts set forth in plaintiffs' statement of undisputed
`
`material facts are deemed admitted if they were not specifically controverted by the defendant. See
`
`E.D. Mo. L.R. 4.01(E). Also, only facts supported by evidence in the record will be deemed to be
`
`true. For purposes of summary judgment, the Court finds the following facts to be true.
`
`Plaintiffs are members of the American Society of Composers, Authors, and Publishers
`
`("ASCAP"). (Jenkins Aff. ¶ 4). At the time of the alleged infringement and at the present time,
`
`2
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 3 of 13 PageID #: 369
`
`plaintiffs are the copyright owners to the musical compositions, (1) "Wild Thing," (2) "Give Me One
`
`Reason," (3) "You Shook Me All Night," and (4) "Pony."1 (Jenkins Aff. ¶ 3, Exs. A-D). ASCAP
`
`is an unincorporated membership association, whose members write and publish musical
`
`compositions. (Demerritt Aff. ¶ 3). As ASCAP members, plaintiffs have granted ASCAP a non-
`
`exclusive license to authorize public performances of the members' copyrighted songs. Id. ASCAP
`
`contacts owners and operators of establishments that perform ASCAP members' music to advise them
`
`of their obligations under the copyright law and to offer them ASCAP licenses. (Demerritt Aff. ¶ 4).
`
`The Three Rivers Inn is located at 2115 N. Westward Boulevard in Poplar Bluff, Missouri.
`
`(Am. Compl. ¶ 4). Defendant Katsaliros was hired as manager of the Three Rivers Inn (formerly
`
`known as the Holiday Inn) in 1993. (Katsaliros Aff. ¶ 3). At the time Katsaliros became manager,
`
`the Three Rivers Inn owner was JFM Investments. (Katsaliros Aff. ¶ 4). JJ's Lounge is a bar at the
`
`Three Rivers Inn. (Katsaliros Dep. 35:5-6). Katsaliros purchased the hotel in 1999 or early 2000.
`
`(Katsaliros Aff. ¶ 9). Katsaliros did not notify ASCAP of the change in ownership from JFM
`
`Investments to himself. (Katsaliros Dep. 47:12-15).
`
`Liquor was sold at JJ's Lounge. (Katsaliros Dep. 35:2-5). Katsaliros filed an application for
`
`renewal of the liquor license for JJ's Lounge. (Katsaliros Dep. 35:13-15; Copeland Aff. Ex. 4). The
`
`liquor license renewal application for the bar filed by Katsaliros was filed in the name of JFM
`
`Investments and stated that Katsaliros was president and managing officer of the corporation.
`
`(Copeland Aff. Ex. 4). Katsaliros hired disc jockeys and people to play karaoke with their own
`
`equipment as part of the entertainment at JJ's Lounge. (Katsaliros Dep. 21:13-22).
`
`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.
`
`3
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 4 of 13 PageID #: 370
`
`In May 1994, Katsaliros, as manager for JFM Investments, signed an ASCAP License
`
`Agreement on behalf of JFM Investments. The term of the License Agreement was from January 1,
`
`1994 to December 31, 1998. The annual expense reports during this time period, upon which license
`
`fees are calculated, were filed by the hotel with "Pete Katsaliros, General Manager" shown as the
`
`signature on behalf of the licensee. (Demerritt Aff. ¶ 8). The hotel and ASCAP entered into an
`
`indefinite interim extension until April 30, 2000 and then until May 31, 2000. (Demerritt Aff. ¶¶ 9-
`
`12). ASCAP mailed letters dated April 21, 2000 and May 31, 2000 to the hotel advising that the
`
`hotel's license with ASCAP would expire on May 31, 2000. (Demerritt Aff. ¶ 12). The May 31,
`
`2000 letter enclosed a new ASCAP license agreement for the hotel facility for execution, but that new
`
`license agreement was never returned to ASCAP. (Demerritt Aff. ¶ 13). After the license was
`
`terminated effective May 31, 2000, ASCAP sent letters dated October 30, 2001, June 3, 2002, and
`
`June 26, 2002 that offered to reinstate the license if the fees due at the termination of the license
`
`agreement were paid and a new license agreement was executed. (Demerritt Aff. ¶ 14, Exs. 1-3).
`
`ASCAP hired an investigator to visit JJ's Lounge on August 3, 2002, and November 9, 2002,
`
`to determine if Katsaliros was publicly performing ASCAP members' music. (Demerritt Aff. ¶ 16).
`
`The investigator, Russell W. Corbin, heard four musical compositions during those two visits: (1)
`
`"Wild Thing," (2) "Give Me One Reason," (3) "You Shook Me All Night," and (4) "Pony." (Am.
`
`Compl., Ex. A). During the August 3, 2002 visit, a disc jockey played music via compact discs
`
`played through four speakers near the dance floor to the lounge. (Demerritt Aff. ¶ 18). There was
`
`a cover charge to enter JJ's Lounge and alcoholic beverages were sold to patrons. (Id.) There were
`
`27 patrons present when Corbin entered JJ's lounge and at one point, there were 70 patrons present.
`
`(Id.) During the November 9, 2002 visit, there was a disc jockey who played music via compact discs
`
`played through four speakers near the dance floor to the lounge. (Demeritt Aff. ¶ 19). There were
`
`4
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 5 of 13 PageID #: 371
`
`46 patrons present at JJ's Lounge when Corbin arrived and at one point there were more than 80
`
`patrons present. (Id.) Katsaliros has no knowledge of what songs were performed at the Three
`
`Rivers Inn and JJ's Lounge on August 2, 2002 and November 9, 2002. (Katsaliros Dep. 15:3-24;
`
`29:13-22). Katsaliros was not at the lounge on those nights. (Id.).
`
`At the time the amended complaint and answer were filed, Katsaliros controlled, operated,
`
`and maintained the Three Rivers Inn. (Am. Compl. ¶ 4, Answer to Am. Compl. ¶ 4). Katsaliros
`
`closed the Three Rivers Inn and JJ's Lounge in March 2004 and the entire hotel facility was sold in
`
`May 2004. (Katsaliros Aff. ¶ 29).
`
`B. Copyright Infringement
`
`Copyright owners have the exclusive right to perform or authorize others to perform their
`
`copyrighted works. 17 U.S.C. § 106. "Anyone who violates any of the exclusive rights of the
`
`copyright owner . . . is an infringer of the copyright . . . ." 17 U.S.C. § 501(a). Plaintiffs must prove
`
`four elements to assert copyright infringement against Katsaliros: (1) authorship of the songs, (2)
`
`ownership of the copyrights, (3) compliance with the statutory requirements to obtain the copyrights,
`
`and (4) unauthorized public performance. Unicity Music, Inc. v. Omni Communications, Inc., 844
`
`F. Supp. 504, 507 (E.D. Ark. 1994). "A prima facie case as to the first three elements may be made
`
`by submitting certified copies of copyright registration certificates and any subsequent assignments."
`
`Cross Keys Publ'g Co. v. LL Bar T Land & Cattle Co., 887 F. Supp. 219, 222 (E.D. Mo. 1995)
`
`(citing Van Halen Music v. Palmer, 626 F. Supp. 1163, 1165 (W.D. Ark. 1986)). Plaintiffs have
`
`provided certified copies of the copyright registration certificates and any subsequent assignments.
`
`(Jenkins Aff., Exs. A-D). Katsaliros has not challenged the validity of the copyright registration
`
`certificates and assignments submitted by the plaintiffs. Therefore, the Court finds that plaintiffs have
`
`established the first three elements of their prima facie case.
`
`5
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 6 of 13 PageID #: 372
`
`As to the fourth element, plaintiffs must establish that there was an unauthorized public
`
`performance of the copyrighted works.
`
`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.
`
`17 U.S.C. § 101. "To 'transmit' a performance or display is to communicate it by any device or
`
`process whereby images or sounds are received beyond the place from which they are sent." Id.
`
`"Copyright infringement is in the nature of a tort, for which all who participate in the infringement
`
`are jointly and severally liable." Cross Keys, 887 F. Supp. at 222 (citations omitted). The
`
`requirements for a finding of vicarious liability for copyright infringement are the right and ability to
`
`supervise the infringing activity and an obvious direct financial interest in exploitation of copyrighted
`
`materials. RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 781 (8th Cir. 1988).
`
`In this case, Katsaliros admits that on August 2, 2002, and November 9, 2002, the disc jockey
`
`at JJ's lounge publicly performed the four songs at issue without authorization from ASCAP.
`
`Katsaliros knew that he did not have a license for JJ's Lounge to perform ASCAP compositions and
`
`knew that a license was necessary if those compositions were performed or transmitted at the bar.
`
`Katsaliros had the right and ability to supervise the infringing activity and an obvious direct financial
`
`interest in exploitation of copyrighted materials because the lounge received compensation from
`
`patrons who paid to enter and drink at the establishment. Therefore, the Court finds that a prima
`
`facie case for copyright infringement has been established. Accordingly, the Court will enter
`
`summary judgment for the plaintiffs.
`
`6
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 7 of 13 PageID #: 373
`
`C. Damages
`
`The only dispute in this case is the appropriate amount of damages to be awarded. Plaintiffs
`
`request permanent injunctive relief, statutory damages in the amount of $60,000, $724.20 for costs,
`
`and $19,607.59 for attorney's fees. Katsaliros asserts that permanent injunctive relief is unnecessary
`
`and the amount of statutory damages sought is excessive.
`
`1. Injunctive Relief
`
`"Any court having jurisdiction of a civil action arising under [the Copyright Act] may . . .
`
`grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain
`
`infringement of a copyright." 17 U.S.C. § 502(a). "Once liability is established, courts will grant
`
`permanent injunctions if there is a substantial likelihood of future infringements. Further, to prevent
`
`future infringements of copyrights held by ASCAP members, courts have extended the injunction's
`
`scope beyond individual plaintiffs' copyrights to reach any musical composition licensed through
`
`ASCAP." Cross Keys, 887 F. Supp. at 223 (citations omitted). Plaintiffs seek a permanent injunction
`
`enjoining defendant from performing any and all music in the ASCAP repertory without a license or
`
`permission from the composer. In support, plaintiffs assert that Katsaliros was well aware of the
`
`copyright licensing requirements and proceeded to engage in unlawful public performances of
`
`copyrighted material. Further, plaintiffs contend that Katsaliros still has not obtained a license to
`
`publicly perform their copyrighted works.
`
`Katsaliros responds that because he no longer operates any lounge or bar or any other place
`
`of business for public entertainment, accommodation, amusement, and refreshment, the threat of
`
`future infringement is not substantial. Katsaliros states that his failure to obtain a license after he
`
`bought the hotel was the result of a dispute about whether he was responsible for licensing fees owed
`
`by JFM Investments. Katsaliros asserts that he tried to obtain a new licensing agreement, but ASCAP
`
`7
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 8 of 13 PageID #: 374
`
`took his money and applied it to the debt owed by JFM Investments. (Katsaliros Aff. ¶¶ 15-18, 20).
`
`Katsaliros does not believe that he has personal liability for the licensing fees incurred by JFM
`
`Investments before he bought the facility. (Katsaliros Aff. ¶ 20, 35). ASCAP would not issue
`
`Katsaliros a renewed license unless Katsaliros paid audit and licensing fees due at the time the original
`
`license was terminated. (Demerritt Aff. ¶ 14).
`
`The Court finds that injunctive relief is appropriate in this case. The Court accepts
`
`Katsaliros's statement that currently he does not own any lounge, bar, or any other place where
`
`copyrighted works could be publicly performed, however Katsaliros could purchase such a facility
`
`in the future. If the Court did not issue a permanent injunction at this time, Katsaliros could buy
`
`another establishment and infringe on plaintiffs' or other ASCAP members' copyrights. Because
`
`ASCAP and Katsaliros dispute whether Katsaliros owes license fees incurred by JFM Investments
`
`prior to the year 2000, it is highly unlikely that Katsaliros could obtain a license to perform ASCAP's
`
`music. The Court finds that because of the continuing dispute over the amount of fees due and the
`
`inability of Katsaliros to obtain a license from ASCAP, a permanent injunction is necessary. The
`
`Court will issue a injunction permanently enjoining and restraining Katsaliros from publicly
`
`performing any copyrighted musical compositions in the ASCAP repertory without proper
`
`authorization.
`
`2. Statutory Damages
`
`A copyright owner may elect to recover actual damages and profits or an award of statutory
`
`damages for all infringements involved in the action, for a sum not less than $750 or more than
`
`$30,000. 17 U.S.C. § 504(c)(1). The following factors may be considered in determining the
`
`appropriate amount of statutory damages: (1) the expenses saved and profits reaped by defendants
`
`in connection with the infringement, (2) revenues lost by plaintiffs, and (3) whether the infringement
`
`8
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 9 of 13 PageID #: 375
`
`was willful and knowing or accidental and innocent. Cross Keys, 887 F. Supp. at 224. District courts
`
`have wide discretion in determining the size of a statutory damages award. Id. at 223.
`
`Plaintiffs seek a statutory damages award of $15,000 per infringement for total damages of
`
`$60,000. In support of their request, plaintiffs assert that (1) Katsaliros had personal knowledge of
`
`copyright licensing requirements at the hotel facility, because he signed the ASCAP license in May
`
`1994 as general manager; (2) the ASCAP license terminated on May 31, 2000 and ASCAP sent
`
`numerous notices of the license termination; (3) Katsaliros was given repeated opportunities to
`
`procure a license; and (4) Katsaliros remained unlicenced and infringed on plaintiffs' copyrights
`
`depriving them of license fees in excess of $15,000. Further, plaintiffs claim that ASCAP incurred
`
`expenses of $1,061.84 to obtain evidence of the infringing performances in this case.
`
`In their calculation of fees, plaintiffs include licencing fees that were due under the licensing
`
`agreement that terminated on May 31, 2000, plus license fees that would have been owed if the hotel
`
`had been licensed from that time through the end of 2003, which is $15,021.70. Plaintiffs assert that
`
`it is appropriate to consider the license fees owed from the 1993-1999 period, because Katsaliros was
`
`the general manager of JFM Investments and hired a disc jockey and people to play karaoke.
`
`Plaintiffs allege that Katsaliros had the right and ability to supervise musical performances and had
`
`a direct financial interest in such activities that would subject him to vicarious liability with the
`
`previous owner of the hotel. Plaintiffs estimate that they lost licensing fees totaling $8,335.00 from
`
`1999 through the end of 2003. (Demerritt Aff. ¶ 34).
`
`Katsaliros asserts that he did make an effort to pay for a renewed license agreement because
`
`he forwarded ASCAP a payment of $2,116.00 in April 2000, but ASCAP applied it to the amount
`
`owed by JFM Investments. Also, Katsaliros asserts that he forwarded requested expenditure
`
`statements for the years 1999 through 2002, when requested to do so by plaintiffs' counsel.
`
`9
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 10 of 13 PageID #: 376
`
`Katsaliros asserts that there is no evidence that any ASCAP licensed music was publicly performed
`
`on any occasion other than the two dates previously discussed. Katsaliros asserts that he is not liable
`
`for statutory damages for the failure of prior owners to pay the balance due on the licensing
`
`agreement from 1993 to 1999. Finally, Katsaliros states that an award of $60,000 is excessive.
`
`The Court finds that the infringement was knowing and willful, but will only award statutory
`
`damages in the amount of $13,000 ($2,000 per infringement and $5,000 for knowing and willful
`
`infringement). To reach this sum, the Court first added the estimated licensing fees from 2000 to
`
`2003 (2000--$1889.00; 2001-- $1730.00; 2002--$1537.00; 2003--$1568) for a total of $6,724.00.
`
`(Demerritt Aff. ¶ 20). Then, the Court added the cost of the investigation ($1,061.84) to the
`
`licensing fee total, which equals $7,785.84 or $1946.46 per infringement. Then, the Court added
`
`$5,000 to the total because the infringement was willful and knowing. The Court rounded the total
`
`to $13,000.00 (2,000 per infringement plus $5,000 because it was willful and knowing). Therefore,
`
`defendant will be ordered to pay statutory damages in the amount of $13,000.00
`
`In the exercise of its discretion, the Court will not award plaintiffs money for the amounts due
`
`on the licensing agreement terminated in May 2000. Plaintiffs have cited no authority to support their
`
`recovery of fees for an amount due on a contract as statutory damages in a copyright infringement
`
`case. The basis of this action is the infringement of plaintiffs' copyrights regarding four musical
`
`compositions in 2002. (Am. Compl. ¶¶ 1-2, 10-11). Plaintiffs have not alleged that Katsaliros
`
`infringed their copyrights during the time period of 1993-1999. The Court has not found any case
`
`where a defendant was held liable for copyright infringement because there was a balance due on a
`
`licensing agreement. All of the cases found by the Court addressing vicarious liability held managers
`
`or owners vicariously liable for their personal actions or those of their agents or employees for
`
`infringing copyrights. See, e.g., Pinkham v. Sara Lee Corp. , 983 F.2d 824, 834 (8 th Cir. 1992)
`
`10
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 11 of 13 PageID #: 377
`
`(president-shareholder and independent agent held personally and vicariously liable for copyright
`
`infringement because they had ability to supervise sale of copied books and made a profit);
`
`RCA/Ariola, 845 F.2d at 781-82 (retailors held vicariously liable for employees' assistance to
`
`customers in copying copyrighted material); Little Mole Music v. Spike Inv., 720 F. Supp. 751, 755-
`
`56 (W.D. Mo. 1989) (partners of company held vicariously liable because they had right and ability
`
`to license machine and misuse was for financial gain).
`
`The Cross Keys case cited by plaintiffs does not provide support for recovery of the licensing
`
`fees due under the terminated licensing agreement. In Cross Keys, the individual defendants admitted
`
`in their answer that they shared joint responsibility for the control of the corporation, the acts
`
`complained of were done with their active assistance, and they received a financial benefit from the
`
`public performance of copyrighted work. Cross Keys, 887 F. Supp. at 223. The vicarious liability
`
`of the Cross Keys defendants stemmed from the public performance of the copyrighted work. Even
`
`if Katsaliros is responsible for the fees due on the terminated agreement, they are not recoverable here
`
`and the Court will not use that amount to increase the statutory damages award.
`
`3. Costs and Attorney's Fees
`
`In an action under the Copyright Act, the Court in its discretion may award full recovery of
`
`costs including a reasonable attorney's fee to the prevailing party. 17 U.S.C. § 505. "Among the
`
`factors a district court can consider in deciding whether to award attorney's fees are 'frivolousness,
`
`motivation, objective unreasonableness (both in the factual and the legal components in the case) and
`
`the need in particular circumstances to advance considerations of compensation and deterrence.'"
`
`Mary Ellen Enters., Inc. v. Camex, Inc.
`
`, 68 F.3d 1065, 1072 (8 th Cir. 1995) (citing Fogerty v.
`
`Fantasy, Inc., 510 U.S. 517, 534 n. 19 (1994)). "Bad faith or willfulness is not a prerequisite to an
`
`award of attorney's fees." Mary Ellen, 68 F.3d at 1072.
`
`11
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 12 of 13 PageID #: 378
`
`Plaintiffs assert that Katsaliros's infringing actions necessitated bringing this lawsuit to protect
`
`their copyrighted works. Further, plaintiffs contend that Katsaliros could have substantially reduced
`
`the attorney's fees if he had accepted ASCAP's requests that he provide information, procure a
`
`license, or settle this matter. Plaintiffs filed an affidavit with their reply memorandum requesting
`
`attorney's fees in the amount of $19,607.59 and costs in the amount of $724.20. Katsaliros did not
`
`directly address plaintiffs' request for attorney's fees.
`
`The Court believes that an award of attorney's fees is appropriate in this case. Plaintiffs
`
`should be compensated for bringing this action and an award of attorney's fees could deter future
`
`infringing conduct. The affidavit submitted by plaintiffs with their reply memorandum does not set
`
`forth the basis for the hourly rates or the experience of each person who performed the services. A
`
`list of total hours per person is not sufficient and counsel should give some guidance as to what
`
`services were provided. The Court will order plaintiffs to file a motion for attorney's fees and costs
`
`within 15 days of the date of this order. In support of their motion for attorney's fees, plaintiffs'
`
`counsel should provide an affidavit setting forth the number of hours counsel spent on each itemized
`
`service pertaining to this matter, the hourly rate(s) used to arrive at the charges for those services,
`
`the basis for such hourly rates, and the identity and experience of each person who performed the
`
`relevant services.
`
`IV. Conclusion
`
`The Court will grant plaintiffs' motion for summary judgment. The Court will enter a
`
`injunction permanently enjoining and restraining Katsaliros from publicly performing any copyrighted
`
`musical compositions in the ASCAP repertory without proper authorization. The Court will grant
`
`plaintiffs statutory damages in the amount of $13,000.00. Finally, the Court will award plaintiffs
`
`costs and attorney's fees. The Court finds that the $13,000 in statutory damages and the assessment
`
`12
`
`
`
`Case: 1:03-cv-00124-CAS Doc. #: 36 Filed: 06/06/05 Page: 13 of 13 PageID #: 379
`
`of costs and attorney's fees will provide plaintiffs with a fair and just amount of damages. Plaintiffs
`
`will be ordered to submit a motion for costs and attorney's fees with supporting documentation within
`
`15 days of the date of this order.
`
`Accordingly,
`
`IT IS HEREBY ORDERED that plaintiffs' motion for summary judgment is GRANTED.
`
`[Doc. 29].
`
`IT IS FURTHER ORDERED that defendant Pete Katsaliros is permanently enjoined and
`
`restrained from publicly performing any copyrighted musical compositions in the ASCAP repertory
`
`without proper authorization.
`
`IT IS FURTHER ORDERED that plaintiffs are awarded statutory damages in the amount
`
`of Thirteen Thousand Dollars ($13,000.00).
`
`IT IS FURTHER ORDERED that within fifteen (15) days of the date of this order, plaintiffs
`
`shall file a motion for attorney's fees along with an affidavit setting forth the number of hours counsel
`
`spent on each itemized service pertaining to this matter, the hourly rate(s) used to arrive at the
`
`charges for those services, the basis for such hourly rates, and the identity and experience of each
`
`person who performed the relevant services.
`
`CHARLES A. SHAW
`UNITED STATES DISTRICT JUDGE
`
`Dated this 6th day of June, 2005.
`
`13