Case 2:04-cv-01711-MBC Document 29 Filed 10/25/06 Page 1 of 12
`Case 2:O4—cv—O1711—MBC Document 29 Filed 10/25/06 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`BROADCAST MUSIC, INC. et al.,
`
`Plaintiffs,
`
`v.
`
`MILLER ASSOCIATES, INC., d/b/a
`AUGGIE’S ROADHOUSE, MICHAEL
`MILLER and ROBERT RIZZO, each
`individually,
`
`Defendants.
`
`%%%%%%€\J%é%%
`
`CA 04-1711
`
`COHILL, D.J.
`
`OPINION
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`Plaintiff Broadcast Music, Inc. (“BMI”) has filed this action for copyright infringement
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`in violation of 17 U.S.C. § 101 et seq. (“the Copyright Act”) on its own behalf and on behalf of
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`the other Plaintiffs who own the copyrights which are the subject of this lawsuit. Claims are
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`asserted against Miller Associates, Inc., d/b/a Auggies’s Roadhouse, and individual Defendants
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`Michael Miller and Robert Rizzo. Plaintiffs seek an injunction against further infringement,
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`and statutory damages for each of fifteen copyright infringements, along with costs, fees, and
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`interest.
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`Before the Court is Plaintiffs’ motion for summary judgment (Doc. 13), which was filed
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`with a concise statement of material facts and supporting memorandum, and Defendant’s
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`response in opposition (Doc. 25). Defendants have not provided a concise statement of
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`material facts.
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`We havejurisdiction under 28 U.S.C. § 1338(a).
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`For the reasons set forth below, we will grant summary judgment in favor of the
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`Plaintiffs and against the Defendants.
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`I. BACKGROUND
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`Under the Copyright Act, owners of copyrights in musical compositions possess the
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`exclusive right to authorize public performances. 17 U.S.C. § 106. Plaintiff BMI is a
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`

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`Case 2:O4—cv—O1711—MBC Document 29 Filed 10/25/06 Page 2 of 12
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`“performing rights society” which licenses the right to publicly perform copyrighted musical
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`works on behalf of the owners of the copyrights. 17 U.S.C. § 101. BMI has been granted the
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`right to license public performance rights in approximately 4.5 million copyrighted musical
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`compositions (the “BMI repertoire”), including those which are the subject of this action.
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`(Compl. at 1] 3 and attached list of musical titles; Saffer Aff. at 1] 1] 4, 5 and Ex. A (registration
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`certificates issued by the U. S. Copyright Office)). The holders of the copyrights of the
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`musical compositions at issue here are joined as Plaintiffs.
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`(Compl. at 1] 4).
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`Plaintiffs and the allegedly infringed compositions are as follows:
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`Plaintiff
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`Fantasy, Inc. d/b/a Jondora Music
`
`Songs of Universal, Inc.
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`Famasy»Inc- ovb/aJ°ndoraMu esi
`Universal - Duchess Music Corp; EMI
`Virgin Songs, Inc. d/b/a EMI Longitude
`Music
`
`
`
`
`
`Bad Moon Rising
`
`Devil Went Down to Georgia a/k/a The
`Devil Went Down to Georgia
`
`Gimme Three Steps
`
`
`
`
`
`
`Screen Gems-EMI Music, Inc.
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`Screen Gems-EMI Music, Inc.; Dale Cecil
`Morris d/b/a Dale Morris Music; Sony/ATV
`Songs LLC d/b/a Sony/ATV Tree Publishing
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`Hooked On A Feeling
`
`If You’re Gonna Play in Texas a/k/a You
`Gotta Have A Fiddle in The Band
`
`
`
`
`
`
`Sony/ATV Songs LLC d/b/a Sony/ATV Tree Mountain Music
`Publishing
`
`
`
`Lightning Crashes
`
`
`
`She Thinks My Tractor’s Sexy
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`EMI Blackwood Music, Inc.; Scarlet Moon
`Music Inc.; Barry DeVorzon d/b/a Jelinda
`Music
`
`
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`Songs of Universal, Inc; Bradley Kirk
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`Arnold, Robert Todd Harrell, Matthew
`Darrick Roberts and Christopher Lee
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`Henderson, a partnership d/b/a Escatawpa
`
`Songs
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`Toby Keith Covel d/b/a Tokeco Tunes;
` Should’ve Been A Cowboy
`Universal-Songs of Polygram International,
`Inc.
`
`
`
`
`
`Loco De Amor Music Inc.
`
`

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`Toby Keith Covel, an individual d/b/a
`Tokeco Tunes
`
`Who’s Your Daddy?
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`Songs of Universal, Inc.; Bradley Kirk
`Arnold, Robert Todd Harrell, Matthew
`Darrick Roberts and Christopher Lee
`Henderson, a partnership d/b/a Escatawpa
`Songs
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`When I’m Gone
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`Sony/ATV Songs LLC d/b/a Sony/ATV
`Acuff Rose Music
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`No Shoes No Shirt No Problems a/k/a No
`Shoes No Shirt (No Problems)
`
`
`
`
`Sony/ATV Songs LLC d/b/a Sony/ATV Tree
`Publishing; Big Yellow Dog, LLC d/b/a Big
`Yellow Dog Music; Toby Keith Covel, and
`individual d/b/a Tokeco Tunes
`
`1 Love This Bar
`
`
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`As a performing rights society, BMI acquires non-exclusive public performance rights
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`from copyright holders, and grants music users such as concert halls, restaurants, nightclubs and
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`hotels, the right to publicly perform any of the works in the BMI repertoire through blanket
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`license agreements. (Saffer Aff. at 1] 2). BMI operates as a non profit-making music
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`performing rights organization. After deducting operating expenses and reasonable reserves, it
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`distributes all of the money it collects in license fees from music users as royalties to its
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`affiliated publishers and composers. (Saffer Aff. at 1] 5).
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`Defendant Miller Associates, Inc., owns and operates Auggie’s Roadhouse, which is
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`located at 1180 Mapleview Drive, Washington PA 15301. (Defs.’ Ans. at 1] 5). Defendants
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`Michael Miller and Robert Rizzo are officers of Miller Associates. They have primary
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`responsibility for the operation and management of the company, and have the right and ability
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`to supervise its activities. Each has a direct financial interest in the company. (Defs.’ Ans. at
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`1]1] 7-9).
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`Auggie’s Roadhouse uses both live and recorded music. (Stevens’ Aff. at 1] 3). The
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`establishment has a jukebox on the premises, which is unlicensed by BMI. ((Stevens’ Aff. at 1]
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`4). Auggie’s Roadhouse asserts that this is a prelicensed jukebox. (Defs.’ Ans. at 1] l 1).
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`However, BMI has no specific record of a licensed jukebox at this location. ((Stevens’ Aff. at 1]
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`

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`4).
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`BMI routinely sends license agreements and information explaining the need to obtain
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`permission from copyright owners in order to lawfully perform copyrighted music in their
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`establishments, to proprietors of establishments such as Auggie’s Roadhouse. (Stevens’ Aff. at
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`‘l 2)-
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`Between February 11, 2002 and April 8, 2004, BMI Assistant Vice-President for
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`General Licensing, Lawrence Stevens, repeatedly informed the Defendants that they needed to
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`obtain permission for public performances of copyrighted music. BMI offered to enter into a
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`license agreement with the Defendants, who refused. (Stevens’ Aff. at ll 2). Twenty-one letters
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`were sent to the Defendants regarding this issue. (Stevens’ Aff. at 1] 2, Ex. 1 (letters)).
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`By letter from Lawrence Stevens dated June 23, 2003, BMI instructed the Defendants to
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`cease public performances of its licensed music. That letter informed Defendants that continued
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`used would result in copyright infringement:
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`Since you have refused to enter into a license agreement with BMI, this shall
`serve as formal notice to you that effective this date, you must cease all use of
`BMI licensed music in your business or organization. The continued use of
`music in the BMI repertoire without authorization will result in copyright
`infringement.
`
`((Stevens’ Aff. at fl 2, Ex. 1 letter dated 6/23/03).
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`Unlicensed public performances of the BMI repertoire continued. A BMI investigator,
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`Susan Hamburger, visited Auggie’s Roadhouse on the evenings of December 4 and 5, 2003.
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`(Stevens’ Aff. at 11 6). A disc jockey selected the music on December 4, and a live band, Pure
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`Country, performed on December 5. Hamburger reported that the fifteen BMI-licensed
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`compositions at issue in this litigation were performed during those two evenings. (Stevens’
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`Aff. Ex. 2, 3).
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`This action was filed on November 10, 2004. Defendants’ answer was served on May
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`6, 2005. Plaintiffs’ First Request for Admissions was served on July 12, 2005. (Saffer Aff. Ex.
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`B). Defendants failed to respond to the request for admissions, and Plaintiffs have now filed
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`

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`for summary judgment.
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`II. SUMMARY JUDGMENT STANDARD
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`Summary judgment is proper where there is no genuine issue as to any material fact, and
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`the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Childers v.
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`Joseph, 842 F.2d 689 (3d Cir. 1989). “Rule 56 mandates the entry of summary judgment, after
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`adequate time for discovery and upon motion, against the party who fails to make a showing
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`sufficient to establish the existence of an element essential to that party’s case, and on which
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`that party will bear the burden of proof at trial.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
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`477 U.S. 317, 322 (1986). The party moving for summary judgment has the initial burden of
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`establishing an absence of evidence to support an element of the non-moving party’s claim.
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`Celotex, 477 U.S. at 325. The non-moving party must then go beyond the pleadings and come
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`forward with affirmative evidence, by affidavit or other information in the factual record, to
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`show that a genuine issue of material fact remains for trial. Anderson v. Liberty Lobby, 477
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`U.S. 242, 256-57; Williams v. West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).
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`A “genuine issue” is one in which the evidence is such that a reasonable jury could
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`return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 247-49
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`(1986). A fact is “material” if it might affect the outcome of the suit under the applicable rule of
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`substantive law. Id. A court considering summary judgment must examine the entire record in
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`the light most favorable to the non-moving party, and draw all reasonable inferences in its
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`favor. Id. at 255. However, Rule 56 “does not permit a party resisting the motion to rely merely
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`upon bare assertions, conclusory allegations or suspicions.” Fireman ’s Insurance Co. v.
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`DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). The non-moving party must demonstrate the
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`existence of a material fact by supplying sufficient evidence for a reasonable jury to find in its
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`favor.
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`III. ANALYSIS
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`Under the Copyright Act, 17 U.S.C. § 100 et seq., any person who violates the exclusive
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`rights of the copyright owner is an infringer of the copyright. 17 U.S.C. § 501(a). Section 106
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`of the Act gives the owner of a copyrighted musical composition the exclusive rights to perform
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`the work publicly and to authorize the public performance of the work. The owner of the
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`copyright may assign the licensing of public performances to others, such as Plaintiff BMI.
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`To establish a claim for copyright infringement, Plaintiffs must show (1) originality and
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`authorship of the copyrighted works involved; (2) compliance with the formalities of the
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`Copyright Act; (3) proprietary rights in the copyrighted works involved; (4) public performance
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`of the compositions involved; and (5) lack of authorization for public performance. Broadcast
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`Music, Inc. v. Pine Belt Inv. Developers, Inc., 657 F.Supp. 1016, 1020 (S.D. Miss 1987); Sailor
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`Music v. Mai Kai of Concord, Inc., 640 F.Supp. 629, 632 (D.N.H. 1986); Blendingwell Music,
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`Inc. v. Moor-Law, Inc., 612 F.Supp. 474, 479-80 (D.Del. 1985). A copyright registration
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`certificate issued from the United States Copyright Office is primafacie evidence of the
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`validity of the party’s copyright and of the facts stated in the certificate, including copyright
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`ownership. 17 U.S.C. §40l (c).
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`The complaint in this matter, along with the Saffer affidavit and attached documents,
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`establish the first three elements of Plaintiffs’ claim. The Schedule filed as part of the
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`complaint provides the title of each musical composition the writer, publisher, date(s) of
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`copyright registration, and registration numbers. (Compl. Schedule A; Saffer Aff. at 114).
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`Saffer Affidavit Exhibit A provides copies of each registration certificate. These documents
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`show the originality and authorship of the compositions, compliance with the formalities of the
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`Copyright Act, and the proprietary rights of these works. Moreover, by refusing to respond to
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`Plaintiffs’ requests for admissions number 30, 32, 34, and 36, Defendants are deemed to have
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`admitted these three elements. Pine Belt Investment Developers, 667 F.Supp. at 1018. In
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`addition, by their failure to respond to number 31, 33, 35, and 37, Defendants have admitted
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`that they can produce no evidence to counter Plaintiffs’ proof of these elements.
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`The fourth element of a claim of copyright infringement, public performance of the
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`compositions at issue, is established by the certified infringement reports prepared for BMI by
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`Susan Hamburger. These reports, which log the name and time of each performance and
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`whether it was by disc jockey or a live band, are attached to the Stevens Affidavit.
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`Furthermore, by their failure to respond to admissions numbers 26 and 28, Defendants admit
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`that the compositions listed on the Schedule were performed, and that there is no evidence that
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`they were not performed.
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`Lack of authorization for public performance of these compositions is established by the
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`Stevens affidavit. Stevens attests that the Defendants did not enter into a license agreement
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`with BMI, and the performances were unauthorized. By their failure to respond to requests for
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`admissions numbers 39 through 61, Defendants are deemed to have admitted that they were not
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`licensed to play the BMI repertoire on December 4 and 5, 2003, and that they received
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`correspondence from BMI which included the letter dated June 23, 2003, instructing them to
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`cease unauthorized performances of BMI-licensed music at Auggie’s Roadhouse.
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`We conclude that the Plaintiffs have set forth the elements of a copyright infringement
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`claim.
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`To defeat summary judgment when the elements of a prima facie case have been
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`established, the party opposing the motion must come forward with affirmative evidence, by
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`affidavit or other evidence in the record, showing that a material issue of fact remains for trial.
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`Defendants have not met their burden. Indeed, the two-page, bare-bones response to Plaintiffs’
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`motion merely asserts that “one or more issues of fact arise from evidence in the record which
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`controverts the evidence cited in support of Plaintiffs’ motion.” (Defs.’ Br. Doc. 25 at 1l 4).
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`We agree with the Plaintiffs that Defendants’ submission fails to meet the requirements
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`of Federal Rule of Civil Procedure 56 (e), which states that a party opposing a properly
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`supported motion for summary judgment “may not rest upon mere allegations or denials of the
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`adverse party’s pleading” but must rely on affidavits or other record evidence to show that
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`disputed issues of material fact remain for trial. Defendants’ submission is conclusory at best.
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`Defendants fail to cite to any authority for any legal proposition. Defendants do not show that
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`disputed issues of material fact remain for trial — indeed, they cannot, since they fail to point to
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`any evidence of record to support their position.
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`Defendants’ response simply asserts that Auggie’s Roadhouse operates a pre—licensed
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`jukebox which is either not subject to the copyright laws or which has already been licensed;
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`that Defendants have no control over music played by any independent contractor disc jockeys;
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`and that they did not receive adequate warnings and were not contacted regarding being
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`licensed to play the BMI repertoire. These unsupported statements carmot defeat summary
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`judgment.
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`Defendants’ statement that the jukebox at Auggie’s Roadhouse is either not subject to
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`the copyright laws or has been licensed is unsupported by any law or evidence. In addition, the
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`record shows that the compositions in question were not played from a jukebox, but were
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`performed by a live band one evening and played by a disc jockey on the other.
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`Defendants’ assertion that it has no control over the content of the musical compositions
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`chosen and played by disc jockeys does not absolve them of liability for copyright infringement.
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`It is well settled that under copyright law a “defendant is vicariously liable for copyright
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`infringement if it has the right and ability to supervise the infringing activity and also has a
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`direct financial interest in such activities.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,
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`Ltd., 545 U.S. 913, 925 (2005). See, also AT&TCo. v, Winback and Conserve Program, Inc.,
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`42 F.3d 1421, 1441 (3d Cir. 1994 (quoting Gershwin Publishing Corp. v. Columbia Artists
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`Mgmt, Inc., 443 F.2d 1159, 1161-62 (2d Cir. 1971)); Shapiro, Bernstein & Co. v. H.L. Green
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`Co., 316 F.2d 304, 307 (2d Cir. 1963); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co.,
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`36 F.2d 354, 355 (7"‘ Cir. 1929) (dance hall owner liable for copyright violations by band hired
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`to entertain paying customers). The federal courts have long held that vicarious liability applies
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`to corporate and individual defendants such as Miller and Rizzo in cases such as this. See, e. g.
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`Shapiro, 316 F.2d at 307 (explaining that “cases are legion which hold the dance hall proprietor
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`liable for the infringement of copyright resulting from the performance of a musical
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`composition by a band or orchestra whose activities provide the proprietor with a source of
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`customers and enhanced income”); KECA Music, Inc. v. Dingus McGee ’s Co., 432 F.Supp. 72,
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`74-75 (W.D.Mo. 1977). An owner or corporate officer of a place of public entertaimnent is
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`liable for permitting unlicensed use of musical compositions at the establishment, and this is so
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`even if the proprietor has directed that unlicensed music not be played. Southern Nights Music
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`Co. v. Moses, 669 F.Supp. 305, 306 (C.D. Cal. 1987); B02 Scaggs Music v. KND Corp., 491
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`F.Supp. 908, 913 (D.Conn. 1980); Warner Brothers v. 0’Keefe, 468 F.Supp. 16, 20 (S.D. Iowa
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`1977). Lack of knowledge, either that particular compositions are subject to the copyright laws
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`or of the music being played, is not a defense to copyright infringement. Southern Nights, 669
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`F.Supp. at 306 (citing Chess Music v. Sipe, 442 F.Supp. 1184 (D.Minn. 1977).
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`Miller Associates, Inc., the corporate defendant in this action, is liable for the copyright
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`infringements at Auggie’s Roadhouse under the agency rule of respondeat superior.
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`Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474, 481 (D.Del. 1985) (citing
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`Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Assoc. , 554 F.2d 1213,
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`1214-15 (15‘ Cir. 1977)).
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`Defendants Michael Miller and Robert Rizzo admit that they are officers of the
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`corporation, Miller Associates, Inc., have primary responsibility for the operation and
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`management of the company, and have the right and ability to supervise its activities. Each has
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`a direct financial interest in the company. (Defs.’ Ans. at 1111 7-9). Defendants have cited to no
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`contrary authority on this issue, and have failed to point to any evidence from which a
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`reasonable fact finder could find that a disputed issue of material fact remained for trial. We
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`conclude that all Defendants are vicariously liable for copyright infringement for the music
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`played at Auggie’s Roadhouse.
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`Finally, Defendants’ position that they did not receive adequate warnings and were not
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`contacted regarding being licensed to play the BMI repertoire is simply belied by Plaintiffs’
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`

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`evidence. The record shows that between February 11, 2002 and April 8, 2004, BMI Assistant
`
`Vice-President for General Licensing, Lawrence Stevens, repeatedly informed the Defendant
`
`that they needed to obtain permission for public performances of copyrighted music. BMI
`
`offered to enter into a license agreement with the Defendants, who refused. (Stevens’ Aff.).
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`Twenty-one letters were sent to the Defendants regarding this issue, including the June 23, 2003
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`letter telling Defendants to cease the unauthorized use of the BMI repertoire. (Stevens’ Aff. at
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`11 2, Ex. 1 (letters)). Defendants have offered no contradictory evidence, and have failed to raise
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`a disputed issue of material fact for trial.
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`Accordingly, we find that the Defendants are jointly and severably liable to the
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`Plaintiffs for damages for copyright infringement for each of the fifteen infringing
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`performances, and we will grant summary judgment in favor of the Plaintiffs and against the
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`Defendants.
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`IV. DAMAGES
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`We turn now to the measure of damages. As authorized by the Copyright Act, Plaintiffs
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`seek permanent injunctive relief, statutory damages for each of the claims of infringement, costs
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`and reasonable attorney’s fees. We note that Defendants’ response fails to address the question
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`of damages.
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`Injunctive Relief
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`Upon a finding of copyright infringement, a court may grant permanent injunctive relief
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`“to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502 (a). Where an
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`establishment continues to provide unauthorized performances of copyrighted musical
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`compositions, despite receiving notice of infringement and demands to cease such
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`infringement, it displays a “willful disregard” of copyrights and should be permanently
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`enjoined. Broadcast Music, Inc. v. Niro ’s Palace, Inc., 619 F.Supp. 958, 963 (N.D. Ill. 1985).
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`We agree with the Plaintiffs that this is such a case. Defendants were repeatedly
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`notified by letter that they needed to obtain permission for public performances of copyrighted
`
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`music. BMI offered to enter into a license agreement, but Defendants refused and continued
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`presenting public performances of the BMI repertoire even after receiving notice to cease such
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`activity. This Court will enter an order enjoining the Defendants from further public
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`performance of Plaintiffs’ musical compositions.
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`Statutory Damages
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`Under the Copyright Act, a plaintiff may elect an award of statutory damages “in a sum
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`of not less than $750 or more than $30,000" per infringement, instead of an award representing
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`actual damages. 17 U.S.C. § 504 (c) (1). Courts have wide discretion in determining statutory
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`damages. 17 U.S.C. § 504 (c) (1); F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S.
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`228, 231-32 (1952); 800 JR Cigar, Inc. v. GoTo. com, Inc., 437 F.Supp.2d 273 (D.N.J. 2006)
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`(citing Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474, 485 (D.Del. 1985)).
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`Where the copyright owner proves that the infringement was committed willfully, the
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`court may increase the award to a sum of not more than $150,000. 17 U.S.C. § 504 (c) (2).
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`Courts have found willful violation of the copyright laws where the infringer received notice of
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`his legal responsibilities under the Copyright Act before the infringement occurred. Swallow
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`Turn Music v. Wilson, 831 F.Supp. 575, 580 (E.D. Texas 1993) (citing Chi-Boy Music v.
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`Charlie Club, Inc., 920 F.2d 1224, 1227 (7"‘ Cir. 1991)). Damages for willful misconduct
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`reflect a need to deter future copyright violations as well as to compensate the plaintiffs.
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`Broadcast Music, Inc. v. DeGallo, 872 F.Supp. 167, 169 (D.N.J. 1995). Where multiple works
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`have been infringed, the statutory maximum may be assessed for each work. Id.
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`In this case, Defendants refused to enter into a licensing agreement and continued the
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`performance of unlicensed compositions despite being repeatedly notified of the infringement
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`and told to cease and desist. Accordingly, we find that Defendants’ acts of infringement were
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`willful.
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`Plaintiffs ask for an award of statutory damages in an amount not less than $3,000 per
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`each of the fifteen acts of copyright infringement, for a total of $45,000. We conclude that
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`damages in this amount are fairly awarded, and are sufficiently punitive to encourage
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`Defendants as well as other similar establishments to enter into licensing agreements and cease
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`infringing performances.
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`Fees and Costs
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`A court may also award reasonable attorney’s fees to the prevailing party in an action
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`for copyright infringement. 17 U.S.C. § 505. We will award Plaintiffs their full costs and
`reasonable attorney’s fees, and direct that they provide the Court with affidavits detailing the
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`amount of time spent on this case, a proposed hourly rate, and any other costs and expenses
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`incurred in litigating this matter.
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`V. CONCLUSION
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`For the reasons set forth above, we find that the Defendants have willfully infringed the
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`fifteen copyrighted compositions at issue in this case, and we find them jointly and severally
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`liable for these infringements. Accordingly, we will grant Plaintiffs’ motion for summary
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`judgment and enter an order permanently enjoining Defendants from further infringement, and
`awarding damages in the amount of $3,000 per infringement, for a total of $45,000. We will
`award costs and reasonable attomey’s fees after Plaintiffs have filed affidavits as directed. An
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`appropriate Order follows.
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`0:9. 73', 2.444.
`Date
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`‘
`Maurice B. Cohill, Jr.
`Senior United States District Judge
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`‘
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`12