Case: 3:13-cv-01007-JZ Doc #: 10 Filed: 05/01/14 1 of 5. PageID #: 150
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`Broadcast Music, Inc., et al.,
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`Case No. 3:13 CV 1007
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`Plaintiffs,
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`AMENDED MEMORANDUM
`OPINION AND ORDER
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`JUDGE JACK ZOUHARY
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`-vs-
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`Steve Reisner, d/b/a The Nest, et al.,
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`Defendants.
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`INTRODUCTION
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`This is a copyright infringement case. Pending before this Court is Plaintiffs’ Motion for
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`Default Judgment (Doc. 8). For the following reasons, Plaintiffs’ Motion is granted, judgment in the
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`amount of $30,300 is entered against Defendants, and Defendants are permanently enjoined from
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`further acts of infringement.
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`BACKGROUND
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`Plaintiffs allege Defendants, who own and operate an establishment known as The Nest a/k/a
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`The New Nest in Fostoria, Ohio, willfully infringed their copyrighted music by playing it without a
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`license (Doc. 1 at ¶ 21). On August 11, 2011, Plaintiffs sent their first letter to Defendants, providing
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`them with information on obtaining licensing to legally play Plaintiffs’ musical compositions in
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`Defendants’ establishment (Doc. 8-5 at 2). Numerous other letters and phone calls followed (Doc.
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`8-3 at ¶¶ 5, 6 & 8). On August 18, 2012, and January 5, 2013, Plaintiffs’ employee visited
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`Defendants’ establishment to investigate the possibility of infringement (Doc. 8-4 at 2, 8). During
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`those visits, Plaintiffs’ employee made recordings of music performed, both live and recorded (id. at
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`2–13). An analysis of the recording from the January 5 visit identified nine musical compositions
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`Case: 3:13-cv-01007-JZ Doc #: 10 Filed: 05/01/14 2 of 5. PageID #: 151
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`protected by Plaintiffs’ copyrights. At the time of the recording, Defendants did not have a license
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`to perform the recorded compositions. They have not obtained a license to date.
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`Plaintiffs filed this lawsuit on May 3, 2013 (Doc. 1), and filed returns of service as to all
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`Defendants on May 7, 2013 (Doc. 5). Defendants failed to appear or file a responsive pleading. On
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`August 12, 2013, the Clerk entered default judgment against Defendants (Doc. 7). Plaintiffs now ask
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`this Court to enter judgment against Defendants in the amount of $43,800 for publicly playing musical
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`compositions without a license (Doc. 8 at 1). Plaintiffs also ask this Court to enjoin Defendants from
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`further infringing the copyrighted musical compositions licensed by Plaintiffs and for Defendants to
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`pay interest on the awarded judgment (id.).
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`STANDARD
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`In order for this Court to enter judgment under Federal Civil Rule 55, this Court must
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`determine the amount of damages. Rule 55 does not require an evidentiary hearing as a prerequisite
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`to the entry of judgment if damages are contained in documentary evidence or detailed affidavits and
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`can be ascertained by computation on the record before the court. Summa Western Reserve Hosp. v.
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`AssureCare, 2012 WL 1361608, at *1 (N.D. Ohio 2012). Plaintiffs seek statutory damages under 17
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`U.S.C. § 504(c), which permits a plaintiff to recover between $750 and $30,000 per infringement,
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`rather than seek actual damages and profits.
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`When determining an appropriate award of statutory damages, courts may consider “the
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`expenses saved and profits reaped by the defendants in connection with the infringements, the
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`revenues lost by the plaintiffs as a result of the defendants’ conduct, and the infringers’ state of mind
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`whether willful, knowing, or merely innocent.” Broadcast Music, Inc. v. Leyland Co., 2012 WL
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`5879838, at *8 (N.D. Ohio 2012) (citing Cross Keys Pub. Co. v. Wee, Inc., 921 F. Supp. 479, 481
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`(W.D. Mich. 1995)). Courts also consider a desired deterrence effect because “[t]he statutory rule,
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`formulated after long experience, not merely compels restitution of profit and reparation for injury
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`but also is designed to discourage wrongful conduct.” F.W. Woolworth Co. v. Contemporary Arts,
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`344 U.S. 228, 233 (1952).
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`ANALYSIS
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`Plaintiffs request statutory damages and attorneys’ fees and costs (Doc. 8-1 at 5) as follows:
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`17 U.S.C. § 504(c)
`Attorney’s Fees
`Costs
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`Total
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`$40,500
`$ 2,900
`$ 400
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`$43,800
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`In support of their Motion, Plaintiffs attach: (1) declaration of Plaintiff Broadcast Music’s
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`Assistant Vice President, Legal (Doc. 8-2); (2) declaration of Plaintiff Broadcast Music’s Assistant
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`Vice President, Licensing (Doc. 8-3); (3) “certified infringement reports” of an auditor’s visits to
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`Defendants’ establishment, “performance identification” declaration of Plaintiff Broadcast Music’s
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`performance identification employee, and declaration of Plaintiff Broadcast Music’s employee
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`authorized to review both the “certified infringement report” from January 5, 2013, and the recording
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`made by the auditor during that visit (Doc. 8-4); (4) the written correspondence Plaintiffs sent to
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`Defendants; and (5) declaration setting forth attorneys’ fees and costs (Doc. 8-5).
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`Plaintiffs seek an award of $4,500 for each of the nine claims of infringement (Doc. 8-1 at 3).
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`Plaintiffs provide evidence that Defendants saved $19,900 by failing to obtain a license to play the
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`music selections at issue for the period between August 2011 and July 2013 (Doc. 8-3 at ¶ 18).
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`According to Plaintiffs, a license costs about $10,000 per year (id.). Before filing their Complaint,
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`Plaintiffs sent 35 letters and made 52 phone calls to Defendants attempting to get Defendants to either
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`buy a license or stop playing the copyrighted music (Doc. 8-5; Doc. 8-3 at ¶ 8). Plaintiff Broadcast
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`Music even sent a licensing employee to Defendants’ establishment to speak with them regarding
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`licensing (Doc. 8-3 at ¶ 8; Doc. 8-5 at 5). Defendants’ continuous disregard of these communications
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`establishes the willfulness of their violation of the Copyright Act. To deter Defendants from future
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`infringement, and recognizing the extra efforts made by Plaintiffs to bring Defendants into
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`compliance, this Court awards Plaintiffs a total of $27,000 in statutory damages ($3,000 per
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`infringement), an amount appropriately in excess of what Defendants would have paid in annual
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`licensing fees during the year the recordings were made (Doc. 8-3 at ¶¶ 10–12, 18).
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`Plaintiffs also seek an injunction barring Defendants from future infringement of Plaintiffs’
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`copyrighted musical works under 17 U.S.C. § 502(a), which grants this Court the power to enjoin
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`parties “to prevent or restrain infringement of a copyright.” Courts typically grant permanent
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`injunctions when defendants fail to obtain a license to perform copyrighted music even after being
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`put on notice of the need for a license “because of the strong probability that unlawful performances
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`of other copyrighted material will occur.” Sailor Music v. IML Corp., 867 F. Supp. 565, 569 (E.D.
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`Mich. 1994). Here, Defendants ignored 35 written correspondences, 52 phone calls, and a personal
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`visit from Plaintiff Broadcast Music, all urging Defendant to obtain a license. From the time of their
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`initial letter, Plaintiffs gave Defendants well over a year to obtain a license before filing suit in this
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`Court. Despite these efforts, Defendants remain unlicensed. Therefore, injunctive relief is
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`appropriate.
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`Plaintiffs also seek an award of attorneys’ fees and costs under 17 U.S.C. § 505, which gives
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`this Court discretion to award reasonable attorneys’ fees and costs to the prevailing party. Plaintiffs
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`request $2,900 in fees and $400 in costs, and both are reasonable. Therefore, this Court awards
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`$3,300 in attorneys’ fees and costs.
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`Case: 3:13-cv-01007-JZ Doc #: 10 Filed: 05/01/14 5 of 5. PageID #: 154
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`CONCLUSION
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`For the reasons stated above, this Court grants Plaintiffs’ Motion for Default Judgment (Doc.
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`8). Defendants are permanently enjoined from further acts of infringement of the copyrighted musical
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`compositions licensed by Plaintiffs, and judgment is entered in the amount of $30,300, plus interest
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`from this date.
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`IT IS SO ORDERED.
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` s/ Jack Zouhary
`JACK ZOUHARY
`U. S. DISTRICT JUDGE
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`May 1, 2014
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