PURPLE RABBIT MUSIC, et al.,
`
`
`Plaintiff,
`
`
`v.
`
`JCJ PRODUCTIONS, L.L.C., JACOB
`TUCKER, and BRANDON TUCKER,
`
`
`
`
`
`
`
`NO. 3:18-cv-00520
`
`JUDGE CAMPBELL
`MAGISTRATE JUDGE
`HOLMES
`
`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`FINDINGS OF FACT AND CONCLUSIONS OF LAW
`
`Defendants.
`
`
`
`
`
`Plaintiffs Purple Rabbit Music, U Rule Music, Divine Pimp Publishing, Key Club Music,
`
`and Lellow Productions, Inc., filed this suit against Defendants JCJ Productions, LLC, Jacob
`
`Tucker and Brandon Tucker, on June 5, 2018. (Doc. 1). The Court granted default judgment on
`
`September 9, 2019. (Doc. 45). Plaintiffs filed an application for monetary judgment on November
`
`8, 2019. (Doc. 50). A hearing on Plaintiffs’ application was held on November 15, 2019, and
`
`none of the Defendants, nor anyone on their behalf, appeared at the hearing. (Doc. 51).
`
`For the reasons discussed below, Plaintiffs’ Application for Monetary Judgment (Doc.
`
`No. 50) is GRANTED.
`
`
`
`I.
`
`FINDINGS OF FACT
`
`1.
`
`The Plaintiffs are the owners of the copyrights in the musical works set forth in
`
`Schedule A (the “Musical Works”) of the Amended Complaint. (Am. Compl., Doc. 17, ¶ 4 &
`
`Schedule A, Doc. 17-1).
`
`2.
`
`Defendant JCJ Productions, LLC (“JCJP”) is a limited liability company
`
`organized under the laws of Tennessee, with a principal place of business located at 1530
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`Demonbreun Street, Nashville, Tennessee 37203. (Doc. 17, ¶ 5).
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`3.
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`All times relevant to this lawsuit, JCJP owned, controlled, managed, operated,
`
`and/or maintained a place of business for public entertainment, accommodation, amusement, and
`
`refreshment known as Frisky Frogs located at 1530 Demonbreun Street, Nashville, Tennessee
`
`37203. (Id., ¶ 6).
`
`4.
`
`5.
`
`Musical compositions were publicly performed at Frisky Frogs. (Id., ¶ 7).
`
`At all times relevant to this lawsuit, Defendants Jacob Tucker and Brandon Tucker
`
`were members and/or principals of JCJP. (Id., ¶ 10).
`
`6.
`
`At all times relevant to this lawsuit, Defendants Jacob Tucker and Brandon Tucker
`
`were responsible for the control, management, operation, and maintenance of the affairs of JCJP.
`
`(Id., ¶ 11).
`
`7.
`
`Until its ultimate closure, and at all times relevant to this litigation, Defendants
`
`jointly owned and operated Frisky Frogs. (see Defs.’ Resp. Req. Admis., Doc. 27-5, ¶ 6).
`
`8.
`
`Until its ultimate closure, and at all times relevant to this litigation, Defendant
`
`Jacob Tucker, as specifically admitted to by Defendants in response to requests for admission, had
`
`the right and ability to supervise and control the public performance of musical compositions and
`
`to determine the music policy at Frisky Frogs. (Id., ¶ 23; see also Doc. 17, ¶ 12).
`
`9.
`
`Until its ultimate closure, and at all times relevant to this litigation, Defendant
`
`Brandon Tucker, as specifically admitted to by Defendants in response to requests for admission,
`
`had the right and ability to supervise and control the public performance of musical compositions
`
`and to determine the music policy at Frisky Frogs. (Doc. 27-5, ¶ 24; see also Doc. 17, ¶ 12).
`
`10.
`
`Each Defendant derived a direct financial benefit from the public performance of
`
`musical compositions at Frisky Frogs. (Id., ¶ 13).
`
`11.
`
`The Plaintiffs are all members of the American Society of Composers, Authors,
`
`
`
`17
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`

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`and Publishers (“ASCAP”), a membership association that represents, licenses, and protects the
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`public performance rights of its members. (Decl. of John Johnson, Doc. 50-2, ¶ 4).
`
`12.
`
`Each ASCAP member grants to ASCAP a non-exclusive right to license the right
`
`of public performance in that member’s copyrighted musical compositions. (Doc. 17, ¶ 15).
`
`13.
`
`On behalf of all of its members, ASCAP licenses the right to perform publicly all
`
`of the millions of copyrighted songs in the ASCAP repertory, which includes the Musical Works,
`
`collects license fees associated with those performances, and distributes royalties to its members,
`
`less ASCAP’s operating expenses. (Doc. 50-2, ¶ 5).
`
`14.
`
`ASCAP licensing representatives attempt to license all restaurants, bars,
`
`nightclubs, and similar such establishments pursuant to ASCAP’s form “General License
`
`Agreement – Restaurants, Bars, Nightclubs, and Similar Establishments” (the “Form License
`
`Agreement”). (Id., ¶ 10; Ex. 21).
`
`15.
`
`A form “Rate Schedule and Statement of Operating Policy” (the “Rate
`
`Schedule”)22 is annexed to, and incorporated by reference into, the Form License Agreement. (Id.).
`
`16.
`
`The Rate Schedule is updated on an annual basis to account for increases in the
`
`Consumer Price Index, All Urban Consumers, and sets forth the various factors upon which annual
`
`license fees for each licensed establishment are calculated. (Id., ¶ 11).
`
`17.
`
`The Form License Agreement
`
`for
`
`restaurants, nightclubs, and similar
`
`establishments is a “blanket license” authorizing the licensee to play any and/or all of the works
`
`
`The Form License Agreement is authenticated by a qualified witness pursuant to Fed. R. Evid.
`1
`901(b)(1) and is a record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc 50-2).
`
`The Rate Schedules for 2016, 2017, and 2018 are attached to the Declaration of John Johnson as
`
`Exhibits 3 through 5, are authenticated by a qualified witness pursuant to Fed. R. Evid. 901(b)(1) and are a
`record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc. 50-2).
`
`
` 2
`
`
`
`18
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`in the ASCAP’s repertory in consideration for payment of an annual license fee. (Id., ¶ 12).
`
`18.
`
`ASCAP’s dealings with the Defendants began in December 2016. (Doc. 17, ¶ 16;
`
`see also Doc 50-2, ¶ 153).
`
`19.
`
`Since December 2016, ASCAP licensing representatives repeatedly warned
`
`Defendants about the consequences of performing ASCAP’s members’ music works without
`
`proper authorization and attempted to offer an ASCAP license agreement for Frisky Frogs. (Doc.
`
`17, ¶ 16; Doc. 50-2, ¶ 16; Doc. 27-5, ¶ 7).
`
`20.
`
`Since December 2016, ASCAP licensing representatives have made more than
`
`eighty (80) attempts to contact the Defendants, their representatives, agents, or employees, to offer
`
`an ASCAP license for Frisky Frogs. (Doc. 50-2, ¶ 16). These attempted contacts have been made
`
`by telephone, by mail, by email, and in-person. (Id.).
`
`21.
`
`At all times relevant, the license fees for Frisky Frogs quoted to the Defendants
`
`by ASCAP representatives were derived from ASCAP’s uniform Rate Schedules used to compute
`
`license fees for similarly situated establishments. (Id., ¶ 19 & Exs. 3, 4, 5).
`
`22.
`
`After multiple telephone contacts, Defendant Jacob Tucker agreed to an in-person
`
`meeting with an ASCAP representative on the morning of March 6, 2017, but he failed to show
`
`up for the scheduled meeting. (Id., ¶ 16 & Ex. 6).
`
`23.
`
`Over the ensuing six (6) months after Defendant Jacob Tucker failed to appear for
`
`the scheduled meeting, eighteen (18) telephone calls were made to Frisky Frogs, which included
`
`telephone conversations with Frisky Frogs representatives including Defendant Jacob Tucker and
`
`consistently resulted in unreturned phone calls or general avoidance efforts. (Id.).
`
`
`Factual findings regarding ASCAP’s dealings with Defendants that are set forth in the Declaration
`3
`of John Johnson (Doc. 50-2) are based on information contained in a file on Frisky Frogs which was created
`and is maintained by ASCAP. The file is authenticated by a qualified witness pursuant to Fed. R. Evid.
`901(b)(1) and is a record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc 50-2).
`
`
`
`19
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`24.
`
`On February 3, 2018, an independent investigator was hired by ASCAP to visit
`
`Frisky Frogs to take notes regarding the musical entertainment at Frisky Frogs and the songs
`
`performed during the visit. (Id., ¶ 22).
`
`25.
`
`According to the investigator’s report, the songs performed at Frisky Frogs on
`
`February 3, 2018, included the Musical Works. (Id., ¶ 22 & Ex. 84).
`
`26.
`
`On February 3, 2018, there were three forms of musical entertainment performed
`
`at Frisky Frogs: a live band, piped in music, and a disc jockey. (Id.; see also Doc. 27-5, ¶¶ 13, 14).
`
`27.
`
`On February 3, 2018, Defendants did not have an ASCAP license for Frisky Frogs.
`
`(Doc. 27-5, ¶ 11).
`
`28.
`
`29.
`
`Frisky Frogs was open to the public on February 3, 2018. (Id., ¶ 12).
`
`Frisky Frogs is believed to have ceased operations in or around December 2018.
`
`(Doc. 50-2; Doc. 50-3, ¶ 8).
`
`30.
`
`Despite repeated reminders of their liability under the United States Copyright
`
`Law, Defendants continued to present public performances of the copyrighted musical
`
`compositions of ASCAP members at Frisky Frogs, without permission, for the entertainment of
`
`their patrons. (Doc. 50-2, ¶ 18).
`
`31.
`
`Based on the Rate Schedule, the prorated license fees “saved” or “avoided” by
`
`Defendants is $9,297.33. (Doc. 50-2, ¶¶ 20 through 23).
`
`32.
`
`33.
`
`Plaintiffs commenced this action on June 5, 2018. (see Doc. 1).
`
`Defendants failed to answer the Complaint by the deadline to do so, and
`
`Plaintiffs accordingly filed a motion for default on July 18, 2018. (Docs. 9-11).
`
`34.
`
`Defendants eventually answered the Complaint on July 31, 2018. (Doc. 14).
`
`
`The investigator’s report is authenticated by a qualified witness pursuant to Fed. R. Evid. 901(b)(1),
`4
`and is a record of regularly conducted activity pursuant to Fed. R. Evid. 803(6). (See Doc. 50-2).
`
`
`
`20
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`35.
`
`36.
`
`The Plaintiffs filed an Amended Complaint on August 15, 2018. (Doc. 17).
`
`Defendants filed an answer to the Amended Complaint on October 5, 2018,
`
`which answer generally denied any copyright infringement. (Doc. 20).
`
`37.
`
`Plaintiffs served Defendants with requests for admission on October 25, 2018.
`
`(Doc. 50-3, ¶ 5).
`
`38.
`
`Defendants served responses to Plaintiffs’ requests for admission on November
`
`26, 2018. (Id.; see also Doc. 27-5).
`
`39.
`
`In response to specific requests for admission regarding Plaintiffs’ ownership of
`
`the involved copyrights and defendants’ lack of permission to perform specific copyrighted
`
`material on specific dates, Defendants recited “lack of knowledge or information,” indicating a
`
`“lack of knowledge” as to whether they received permission from the Plaintiffs to perform the Musical
`
`Works. (Id.).
`
`40.
`
`Defendants’ responses to Plaintiffs’ requests for admission reflect a continuation
`
`of a deliberate course of evasive conduct on the part of the Defendants. (Id.).
`
`41.
`
`Counsel for the Plaintiffs and former counsel of record for the Defendants
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`appeared for a telephone case management conference on January 30, 2019, during which
`
`Defendants’ former counsel was directed to remind his clients about the case management
`
`deadlines that were in place at that time. (See Doc. 23 at n.2).
`
`42.
`
`On February 4, 2019, former counsel of record for Defendants filed a motion to
`
`withdraw. (Doc. 24). Attached to this motion is a letter to Defendants from their former counsel
`
`notifying them of his intention to withdraw and reciting his numerous unsuccessful efforts to
`
`discuss with them pending deadlines and discovery deficiencies. (Doc. 24-1). Also attached to the
`
`motion is an email from Defendant Jacob Tucker, advising Defendants’ former counsel that
`
`Defendants wish to terminate his services based on their intention “to go in a different direction.”
`
`
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`21
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`(Doc. 24-2).
`
`43.
`
`44.
`
`The motion to withdraw was granted. (Doc. 25).
`
`Defendants were given time to retain new counsel, and JCJ was expressly
`
`admonished that its failure to retain counsel would be grounds for default because it cannot appear
`
`pro se. (Doc. 25).
`
`45.
`
`On February 14, 2019, Plaintiffs filed a motion to compel discovery and for other
`
`relief. (Doc. 27).
`
`46.
`
`Because the time for Defendants to retain new counsel had not yet expired at that
`
`time, the Court, by order entered on February 15, 2019, allowed Defendants until March 15,
`
`2019, to respond to Plaintiffs’ motion to compel, and warned Defendants that failure to timely
`
`respond could result in sanctions, including any of those permitted by Rule 16(f) and Rule 37.
`
`(Doc. 28).
`
`47.
`
`Defendants did not respond to Plaintiffs’ motion to compel by March 15, and no
`
`attorney entered an appearance on behalf of any of the Defendants before the deadline established
`
`by the Court. (Doc. 29).
`
`48.
`
`On March 30, 2019, the Court entered an order granting Plaintiffs’ motion to
`
`compel and directed Defendants to provide full and complete responses to Plaintiffs’ discovery
`
`requests no later than April 10, 2019. (Doc. 30).
`
`49.
`
`In the March 30 order, Defendants were again warned that failure to provide
`
`discovery could result in a default judgment. (Id. at PageID # 135).
`
`50.
`
`The March 30 order was returned to the Court as undeliverable to Defendants.
`
`(Docs. 31, 32, 39). However, this order was not the first time Defendants had been notified that
`
`failing to comply with the Court’s orders could result in default. (See Docs. 25, 28).
`
`
`
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`51.
`
`The individual Defendants were expressly ordered to notify the Court if they
`
`intended to proceed pro se. (See Doc. 25). The Defendants never provided the Court with such
`
`notice, nor did they provide the Court with an up-to-date mailing address. (See Doc. 40 at fn. 7).
`
`52.
`
`The Defendants never served responses to Plaintiffs’ first set of interrogatories
`
`and requests for production. (Docs. 33, 34).
`
`53.
`
`The Plaintiffs filed a motion for default judgment and attorneys’ fees and costs
`
`(Id.), which this Court granted by order dated September 9, 2019 (Doc. 45), wherein it adopted
`
`and approved the Magistrate’s Report and Recommendation (Doc. 40).
`
`54.
`
`On November 8, 2019, Plaintiffs filed an application for monetary judgment and
`
`injunctive relief. (Doc. 50). In support of this application, Plaintiffs also filed the Declaration of
`
`John Johnson (Doc. 50-2) and the Affidavit of Blakeley D. Matthews (Doc. 50-3).
`
`55.
`
`Plaintiffs have elected to seek statutory damages pursuant to 17. U.S.C. §
`
`504(c)(1). (Docs. 17, 50, 51).
`
`A. Liability
`
`II.
`
`CONCLUSIONS OF LAW
`
`A default constitutes an admission of all well-pleaded factual allegations in the complaint
`
`and the allegations as they pertain to liability are deemed true. Realsongs, Universal Music Corp.,
`
`et al. v. 3A North Park Avenue Rest. Corp., et al., 749 F. Supp. 2d 81, 85 (E.D.N.Y. 2010) (citing
`
`Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert.
`
`denied, 506 U.S. 1080, 113 S.Ct. 1049, 122 L.Ed.2d 357 (1993)). A default judgment entered on
`
`the well-pleaded allegations in the complaint establishes a defendant’s liability. Id.
`
`JCJP is directly liable to the Plaintiffs for copyright infringement. Liability for direct
`
`infringement arises from the violation of any one of the exclusive rights of a copyright owner. Id.;
`
`
`
`23
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`

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`see also 17 U.S.C. § 501(a). The owner of copyright has the exclusive rights to and to authorize
`
`others to reproduce, distribute, perform publicly, or perform by means of digital audio transmission
`
`the copyrighted work. Id.; see also 17 U.S.C. § 106. Here, the pleadings establish that each of the
`
`Plaintiffs to this lawsuit secured the exclusive rights and privileges and to the copyright of certain
`
`musical works. The report of the independent investigator establishes that four of these works
`
`whose copyrights belong to the Plaintiffs were performed publically at Frisky Frogs, an
`
`establishment owned, controlled, managed, operated and/or maintained by JCJP. JCJP never
`
`obtained permission or authorization to perform such works. Accordingly, JCJP is a direct
`
`infringer.
`
`Defendants Jacob Tucker and Brandon Tucker are both individually and personally liable
`
`for copyright infringement through the theory of vicarious infringement. “[A]ny individual,
`
`including a corporate officer, who has the ability to supervise infringing activity and has a financial
`
`interest in that activity, or who personally participates in that activity, is personally liable for that
`
`infringement.” Realsongs, 749 F. Supp. 2d at 86. Defendants Jacob Tucker and Brandon Tucker
`
`had the right and ability to supervise and control the activities, including the right to supervise and
`
`control the public performance of music works, at Frisky Frogs, and they derived a direct financial
`
`benefit from the public performance of musical works at Frisky Frogs. They are accordingly
`
`vicariously liable to the Plaintiffs for the copyright infringement that took place at Frisky Frogs.
`
`B. Statutory Damages
`
`Federal law provides for the recovery of damages by a copyright owner whose works have
`
`been infringed. 17 U.S.C. § 504. The Copyright Act (17 U.S.C. 504(c)(1)) provides that:
`
`[T]he copyright owner may elect . . . to recover, instead of actual
`damages and profits, an award of statutory damages for all
`infringements involved in the action, with respect to any one
`work, for which any one infringer is liable individually, or for
`
`
`
`24
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`

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`which any two or more infringers are liable jointly and severally,
`in a sum of not less than $750 or more than $30,000 as the court
`considers just.
`
`For infringements found to be willful, the Court has the discretion to award damages of up
`
`
`
`to $150,000.00 per work infringed. 17 U.S.C. § 504(c)(2). Plaintiffs claim that Defendants’
`
`infringements were committed willfully and have elected to recover statutory damages.
`
`
`
`1. Willfulness
`
`For an infringement to be found willful, it must be done with knowledge that the conduct
`
`constitutes infringement. See Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 584
`
`(6th Cir. 2007). Willfulness may be proved by showing that a defendant had actual or constructive
`
`knowledge that it was infringing the plaintiff’s copyright, or by showing that the defendant acted
`
`in reckless disregard of the high probability that it was infringing plaintiff’s copyright. See Tenn.
`
`Walking Horse Breeders’ and Exhibitors’ Ass’n v. Nat’l Walking Horse Ass’n, 528 F. Supp.2d
`
`772, 780 (M.D. Tenn. 2007).
`
`The Court finds that Defendants’ infringement of Plaintiffs’ copyrights in this case was
`
`willful. Defendants failed to respond to—and at times actively dodged—over eighty attempts made
`
`by ASCAP to contact Defendants, their representatives, agents, or employees, in an effort to
`
`remind them of their obligations under federal copyright law and to warn them that unauthorized
`
`performances would constitute copyright infringement. Significantly, from December 2016, when
`
`ASCAP first began notifying Defendants of their infringement, until December 2018, when Frisky
`
`Frogs is believed to have ceased operations, Defendants brazenly continued to feature public
`
`performances of copyrighted music at Frisky Frogs, including the works involved in this lawsuit.
`
`Even after the initiation of this lawsuit, Defendants still refused to obtain an ASCAP license and
`
`engaged in dilatory tactics, inter alia: (i) failing to cooperate with discovery (ii) failing to cooperate
`
`
`
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`with their own counsel, which ultimately led the Court to grant their counsel’s motion to withdraw;
`
`and (iii) failing to comply with scheduling and other orders. Indeed, around the same time that
`
`Frisky Frogs ceased operations, Defendants demonstrated a complete refusal to participate in this
`
`litigation. The Court may infer that Defendant willfully infringed Plaintiffs’ copyrights because of
`
`Defendants’ default and failure to obey Court Orders in this action. Arista Records, Inc. v. Beker
`
`Enterprises, Inc., 298 F. Supp. 2d 1310, 1313 (S.D. Fla. 2003). Defendants demonstrated a
`
`complete and reckless disregard for the high probability that their conduct was infringing on
`
`Plaintiffs’ rights. Their conduct both prior to and after the commencement of this lawsuit is a
`
`glaring example of willful infringement.
`
`
`
`2. Amount of Statutory Damages Awarded
`
`The Copyright Act affords the trial court wide discretion in setting the amount of statutory
`
`damages. See, e.g., Zomba Enters., 491 F.3d at 586-87. Many factors influence an award of
`
`statutory damages for copyright infringement, including the expenses saved and the profits
`
`earned by the defendant, the revenues lost by the plaintiff, the deterrent effect, if any, that such an
`
`award will have on the defendant and on third parties, the cooperation of the defendant in providing
`
`evidence concerning the value of the infringing material, the defendant’s state of mind, and the
`
`conduct and attitudes of the parties. Peer Int’l, 909 F.2d at 1336.
`
`In cases involving unlicensed public performances of copyrighted music, such as the case
`
`at bar, “courts have held that, in order to put such infringers on notice that it costs less to obey the
`
`copyright laws than to violate them, a statutory damage award should significantly exceed the
`
`amount of unpaid license fees.” Broadcast Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp.
`
`656, 659-660 (S.D.N.Y. 1996) (emphasis added) (internal quotations and citations omitted). In
`
`other words, statutory damages are designed not solely to compensate the copyright owner for
`
`
`
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`

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`losses incurred, but also to deter future infringement. Johnson v. Jones, 149 F.3d 494, 504 (6th Cir.
`
`1998).
`
`Here, as set forth above, the Court has found that Defendants’ infringing conduct was
`
`clearly willful. The Plaintiffs have requested an award of $10,000 per infringement for a total
`
`award of $40,000, which is well within the range of statutory damages allowed under 17 U.S.C.
`
`§ 504(c)(1). In light of the foregoing, the Court finds that Plaintiffs are entitled to an award of
`
`$10,000 for each of the four compositions, or a total of $40,000 in statutory damages, as a result
`
`of Defendants’ willful infringement. Further, because the infringement in this case flowed from
`
`the joint willful conduct of all of the Defendants, their liability for the awarded damages shall be
`
`joint and several. See Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d. 1110, 1116 (2d Cir.
`
`1986) (two or more copyright infringers may be held jointly and severally liable for statutory
`
`damages where the infringement flowed from joint action of the infringers).
`
`C. Permanent Injunction
`
`
`Plaintiffs are also entitled to injunctive relief prohibiting Defendants Jacob Tucker and
`
`Brandon Tucker from publicly performing works in the ASCAP repertory in the future without
`
`first obtaining proper authorization to do so. A court may issue an injunction on a motion for
`
`default provided that the moving party shows that (1) it is entitled to injunctive relief under the
`
`applicable statute and (2) it meets the prerequisites for the issuance of an injunction. Realsongs,
`
`749 F. Supp. 2d at 93. Section 502(a) of the Copyright Act provides:
`
`Any court having jurisdiction of a civil action arising under this
`title may…grant temporary and final injunctions on such terms as
`it may deem reasonable to prevent a restrained infringement of a
`copyright.
`
`
`17 U.S.C. § 502(a). Accordingly, the moving party must establish that (1) absent injunctive relief,
`
`it will suffer irreparable harm, and (2) actual success on the merits. Realsongs, 749 F. Supp. 2d at
`
`
`
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`93.
`
`In order to make out a prima facie case of copyright infringement, “a party must establish
`
`ownership of a valid copyright and that the defendant violated an exclusive right conferred by the
`
`ownership.” Id. In the case at bar, the Plaintiffs are the copyright owners to the musical works at
`
`issue and have established by proof that Defendants used the copyrighted musical works without
`
`the proper permission or authority to do so on February 3, 2018. Accordingly, Plaintiffs have
`
`established actual success on the merits.
`
`Irreparable harm is presumed where a party has established a prima facie case of copyright
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`infringement. Id. Moreover, it is clear from the record that Defendants have no intention of
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`following the law and will likely continue to violate Plaintiffs’ copyrights absent an injunction.
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`This is exacerbated by the Defendants’ conduct throughout this litigation – most
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`significantly being their ultimate complete refusal to participate in this action after Frisky Frogs
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`ceased operations.
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`III. CONCLUSION
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`The Court awards Plaintiffs statutory damages in the amount of $40,000 for Defendants’
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`willful infringement of Plaintiffs’ copyrights and permanently enjoins Defendants from
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`performing any songs in the ASCAP repertory in the future without first obtaining proper
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`authorization to do so. The Court also awards Plaintiffs all attorneys’ fees and costs, pursuant
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`to 17 U.S.C. § 505. A separate order will enter.
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`_______________________________
`WILLIAM L. CAMPBELL, JR.
`UNITED STATES DISTRICT JUDGE
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`28
`Case 3:18-cv-00520 Document 53 Filed 12/05/19 Page 13 of 13 PageID #: 571
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