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Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 1 of 13 PageID #: 307
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`Cause No. 6:06-CV-157
`
`§§
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`§§
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`§
`§
`§
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`§§
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`§
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`CONTROVERSY MUSIC, ET AL.,
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`Plaintiffs,
`
`V.
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`DOWN UNDER PUB TYLER, INC.,
`ET AL.,
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`Defendants.
`
`MEMORANDUM OPINION AND ORDER ON
`PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
`
`Pending before the Court is the Plaintiffs’ Motion for Summary Judgment and Brief
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`in Support (Docket Entry No. 25). Having considered Plaintiffs’ motion and the
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`accompanying evidence, and seeing that there is no opposition to the facts or evidence
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`contained in the motion, the Court is of the opinion that the Plaintiffs’ motion for summary
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`judgment should be granted.
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`BACKGROUND
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`This is an action for copyright infringement arising from the unauthorized public
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`performance of Plaintiffs’ copyrighted musical compositions at Down Under Pub & Grub,
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`at a restaurant and night club located in Tyler, Texas.
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`The undisputed facts, as supported by the Plaintiffs’ summary judgment evidence, are
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`as follows. From August 2003 to April 2006, Defendants Down Under Pub Tyler, Inc., Kelly
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`Page 1 of 13
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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 2 of 13 PageID #: 308
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`St. Andre, and Wayne Neil (collectively “Defendants”) owned and operated an establishment
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`offering public entertainment, known as Down Under Pub & Grub, located in Tyler, Texas
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`(“Down Under Pub (Tyler)”).
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`On June 10, 2005, the five musical compositions at issue in this lawsuit—Kiss, 1999,
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`Give It To Me Baby, Wild Thing, and Shooting Star—were publicly performed at Down
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`Under Pub (Tyler). The Plaintiffs—Controversy Music, Jobete Music Co., Inc., Varry White
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`Music, Ex VW, Inc., Loc’d Out Music, and WB Music Corp.—own the respective copyrights
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`to these five musical compositions. 1
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`Each plaintiff is a member of the American Society of Composers, Authors and
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`Publishers—commonly known by its acronym “ASCAP”—which licenses the nondramatic
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`public performance of its members’ copyrighted music. Plaintiffs have granted to ASCAP
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`a nonexclusive right to license non-dramatic public performances of their copyrighted
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`musical compositions. On behalf of the plaintiffs and ASCAP’s more than 275,000 other
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`members, ASCAP licenses thousands of music users, including radio and television
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`networks, radio and television stations, restaurants, nightclubs, and other establishments
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`whose owners desire to lawfully perform copyrighted musical compositions in the ASCAP
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`repertoire.
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` Schedule A to the Complaint (Docket Entry No. 18) sets out the titles, writers, copyright
`1
`owners, and copyright registration numbers for each of the musical compositions at issue in this
`suit.
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`Page 2 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 3 of 13 PageID #: 309
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`The summary judgment evidence establishes that ASCAP representatives tried on
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`numerous occasions from June 2004 through April 2005 to inform the Defendants of the
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`necessity and availability of a license to perform the songs contained in ASCAP’s repertoire
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`of musical compositions. All of ASCAP’s licensing offers—which were made by telephone,
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`by mail, and during personal visits by ASCAP representatives—were ignored or rejected by
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`Defendants. This evidence indicates that, prior to Defendants’ June 10, 2005 performance
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`of Plaintiffs’ music, the Defendants were aware of their obligations to obtain permission for
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`public performances of copyrighted music at their establishment. Defendants were also
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`aware that Down Under Pub (Tyler) was not licensed to perform copyrighted musical
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`compositions in the ASCAP repertoire.
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`Plaintiffs’ filed this cause of action on April 7, 2006 for copyright infringement
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`seeking the remedies provided by the United States Copyright Act, including an injunction
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`prohibiting further infringing performances of copyrighted musical compositions in
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`ASCAP’s repertoire; statutory damages in the amount of $5,000.00 per infringement, for a
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`total damages award of $25,000.00; and costs, including reasonable attorney’s fees. The
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`Defendants answered on December 21, 2006. Plaintiffs filed this motion for summary
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`judgment on March 13, 2007 on the grounds that there is no genuine issue of material fact
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`as to the elements of Plaintiffs’ claims for copyright infringement and that Defendants are
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`jointly and severally liable for all damages. The Defendants’ response was due on March 29,
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`and to date no response has been filed.
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`Page 3 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 4 of 13 PageID #: 310
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`SUMMARY JUDGMENT STANDARD
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`A motion for summary judgment should be granted “if the pleadings, depositions,
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`answers to interrogatories, and admissions on file, together with the affidavits, if any, show
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`that there is no genuine issue as to any material fact and that the moving party is entitled to
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`a judgment as a matter of law.” FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S.
`
`317, 323–25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
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`1998). The moving party must show initially that there is no genuine issue of any material
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`fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 256 (1986). A fact is
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`“material” if it might affect the outcome of the suit under the governing law. Anderson, 477
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`U.S. at 248; Merritt-Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 961 (5th Cir. 1999).
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`Issues of material fact are “genuine” only if they require resolution by a trier of fact and if
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`the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving
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`party. Anderson, 477 U.S. at 248; Merritt-Campbell, Inc., 164 F.3d at 961.
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`Once the moving party has satisfied its burden, the party opposing a properly
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`supported motion for summary judgment may not rest upon mere allegation or denials in its
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`pleading, but must “set forth specific facts showing that there is a genuine issue for trial.”
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`Anderson, 477 U.S. at 256. When ruling on a motion for summary judgment, the court is
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`required to view all inferences drawn from the factual record in the light most favorable to
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`the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
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`574, 587 (1986); Merrit-Campbel, Inc., 164 F.3d at 961.
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`Page 4 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 5 of 13 PageID #: 311
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`Pursuant to Local Court Rule CV-56, a party filing a motion for summary judgment
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`must include a “Statement of Material Facts,” and any party opposing the motion should
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`serve a response that includes a “Statement of Genuine Issues.” Local Rule CV-56(a), (b),
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`(c). Both the motion and the response should be accompanied by proper summary judgment
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`evidence. See FED. R. CIV. P. 56. Local Rule CV-56 further states that
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`the court will assume that the facts as claimed and supported by admissible
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`evidence by the moving party are admitted to exist without controversy,
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`except to the extent that such facts are controverted in the “Statement of
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`Genuine Issues” . . . as supported by appropriate summary judgment
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`evidence. The court will not scour the record in an attempt to determine
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`whether the record contains an undesignated genuine issue of material fact
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`for trial before entering summary judgment.
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`Local Rule CV-56(c) (emphasis added).
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` Because the Defendants have not responded to this motion, all facts in the Plaintiffs’
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`motion that are properly supported by affidavits and admissible evidence are taken as
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`admitted by Defendants.
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`DISCUSSION
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`A.
`
`Copyright Infringement
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`The United States Copyright Act bestows upon the owner of a copyright the exclusive
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`right to do or authorize the public performance of a copyrighted musical composition. 17
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`Page 5 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 6 of 13 PageID #: 312
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`U.S.C. § 106(4). A person who violates a copyright owner’s exclusive right may be held
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`liable as a copyright infringer. 17 U.S.C. § 501(a). The Defendants may be held liable for
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`copyright infringement arising from unauthorized public performance if the Plaintiffs prove
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`each of the following: (1) that the Plaintiffs own and properly registered the copyrights of
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`the musical compositions involved in this action; (2) that the musical compositions were
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`performed publicly; and (3) that the Defendants had not received permission from any of the
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`Plaintiffs or their representatives for such performance. See Swallow Turn Music v. Wilson,
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`831 F. Supp. 575, 577 (E.D. Tex. 1993).
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`The Defendants have admitted that the Plaintiffs own the copyrights to each song
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`identified in the Complaint, and that the Plaintiffs have registered their songs as reflected in
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`Schedule A to the Complaint. (App. 101, 144, 153, 157.) Accordingly, there is no genuine
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`issue of material fact as to the first element.
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`As to Defendants’ public performance of the compositions, the Plaintiffs offer the
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`Declaration of Jim Casanova, an individual hired by ASCAP to visit the Down Under Pub
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`in Tyler on June 10, 2005 for the purpose of making a list of songs he heard performed there
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`on that evening. Mr. Casanova’s Declaration indicates that the five songs alleged in the
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`Complaint were publicly performed at the Down Under Pub in Tyler on June 10, 2005.
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`(App. 1–14A.) Furthermore, Defendants stated in their admissions and deposition testimony
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`that they did not know whether or not any of the subject songs were performed on June 10,
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`2005, and that they do not keep records of what songs are performed. (App. 103, 135, 143,
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`Page 6 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 7 of 13 PageID #: 313
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`156–58.) Because the Defendants have not challenged the Plaintiffs’ evidence on this point,
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`the Court finds that there is no genuine issue of material fact as to whether the Defendants
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`presented a public performance of the Plaintiffs’ musical works.
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`As to the third element, the Defendants have not pleaded a defense of “license” or
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`permission to present a performance of any of the subject works. The Defendants also have
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`admitted that they did not have a license to present a public performance of the subject works
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`in June 2005. (App. 102, 153.) Accordingly, there is no genuine issue of material fact as to
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`whether the Defendants had obtained the Plaintiffs’ permission to present the June 10, 2005
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`public performances of the Plaintiffs’ musical works.
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`Because the undisputed evidence satisfies each element of Plaintiffs’ infringement
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`claims, the Court finds that summary judgment as to the Plaintiffs’ infringement claims
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`should be granted.
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`B.
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`Defendants’ Joint Liability for Copyright Infringement
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`Plaintiffs allege that Defendants Down Under Pub Tyler, Inc, Neil, and St. Andre are
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`jointly liable for the infringement. All participants in copyright infringement are jointly
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`liable as tortfeasors. See Screen Gems-Columbia Music, Inc. v. Metlis & Lebow Corp., 453
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`F.2d 552, 554 (2d Cir. 1972); Charles Deitcher Productions, Inc. v. Milano Restaurant, Inc.,
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`21 U.S.P.Q.2d 1877, 1879 (E.D. Tex. 1991), aff’d 24 U.S.P.Q.2d 1794 (5th Cir. 1992).
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`Liability for copyright infringement falls not only on the person who actually performed the
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`copyrighted music, but also on persons who (1) had the right and ability to control the
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`Page 7 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 8 of 13 PageID #: 314
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`infringing activity and (2) had a direct financial interest in that activity. Nelson-Salabes, Inc.
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`v. Morningside Dev., 284 F.3d 505, 513 (4th Cir. 2002) (noting business owner’s liability for
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`infringement under theory of vicarious liability); Crabshaw Music v. K-Bob’s of El Paso,
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`Inc., 744 F. Supp. 763, 767–68 (W.D. Tex. 1990) (same).
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`Plaintiff’s unopposed evidence establishes that Defendant Down Under Pub Tyler,
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`Inc., was the corporation that operated Down Under Pub (Tyler), leased the premises, and
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`exercised day-to-day management of the establishment. (App. 74–75, 83–84, 87.)
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`Defendants Neil and St. Andre were officers, directors, and the primary shareholders of that
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`corporation. (App. 73–77, 79, 82, 84, 87, 96, 97, 115, 161.) Defendants Neil and St. Andre
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`have admitted that they had primary control, management, operation, and maintenance of the
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`affairs of Down Under Pub (Tyler) in June 2005. (App. 89, 153.)
`
`Defendant Down Under Pub Tyler, Inc., is properly held liable for copyright
`
`infringement because it owned and operated the establishment where the performances
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`occurred. See Charles Deitcher Prods., Inc., 21 U.S.P.Q.2d at 1879; Crabshaw Music, 744
`
`F. Supp. at 767–68. Defendants Neil and St. Andre are properly held vicariously liable for
`
`copyright infringement because, as officers, directors, and primary shareholders of Down
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`Under Pub Tyler, Inc., the operating entity for Down Under Pub (Tyler), these two
`
`individuals had the right and ability to control the infringing activity as well as a direct
`
`financial interest in the infringing activity. See, e.g., id. at 767–68; Fermata Int’l Melodies,
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`Page 8 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 9 of 13 PageID #: 315
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`Inc. v. Champions Golf Club, Inc., 712 F. Supp. 1257, 1262 (S.D. Tex. 1989), aff’d, 915 F.2d
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`1567 (5th Cir. 1990).
`
`Because the Defendants had the right and ability to control the infringing activity, and
`
`because the Defendants each had a direct financial interest in the infringing activity, the
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`Defendants are jointly liable for the above-established copyright infringement.
`
`C.
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`Remedies
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`1. Injunctive Relief
`
`The Copyright Act authorizes the Court to 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). When an infringement occurs, the copyright owner is entitled to an
`
`injunction prohibiting further infringing performances. See Twentieth Century Music Corp.
`
`v. Frith, 645 F.2d 6, 7 (5th Cir. 1981); Fermata, 712 F. Supp. at 1262; Canopy Music, Inc.
`
`v. Harbor Cities Broadcasting, Inc., 950 F. Supp. 913, 916 (E.D. Wis. 1997). As has been
`
`established in the affidavit of Douglas Jones, ASCAP representatives tried on numerous
`
`occasions to secure a licensing agreement with the Defendants and Defendants were clearly
`
`aware of the necessity of obtaining permission to publicly perform protected musical
`
`compositions without a license. (App. 15–21.) This is evidence that Defendants have
`
`purposefully and consciously disregarded the rights of the Plaintiffs, entitling the Plaintiffs
`
`to an injunction prohibiting the Defendants from performing Plaintiffs’ copyrighted songs
`
`without permission. Moreover, as has been recognized by other courts, the Plaintiffs
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`Page 9 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 10 of 13 PageID #: 316
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`represent the interests of all ASCAP members whose music could be infringed by
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`Defendants, and the Court therefore finds that injunctive relief should protect all music in the
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`ASCAP repertoire. See Canopy Music, 950 F. Supp. at 916; Meadowgreen Music v. Voice
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`in the Wilderness Broadcasting, Inc., 789 F. Supp. 823, 828 (E.D. Tex. 1992).
`
`2. Statutory Damages
`
`Plaintiffs also seek statutory damages under 17 U.S.C. § 504(c). Under § 504(c)(1),
`
`“the copyright owner may elect, at any time before final judgment is rendered, 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 which any two or more infringers are liable jointly and severally, in a sum
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`of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C.
`
`§ 504(c)(1). If a defendant’s infringement was committed willfully, the court has discretion
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`to increase an award of statutory damages to no more than $150,000 per work. 17 U.S.C.
`
`§ 504(c)(2). Infringement is willful if the Defendant had knowledge that his conduct
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`represented infringement or recklessly disregarded the possibility that his conduct might
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`constitute infringement. See Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 288 (2nd Cir.
`
`1999); Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir. 1988). The court
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`has discretion to award damages within the statutory limits. See Lodge Hall Music, Inc. v.
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`Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir. 1987).
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`Page 10 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 11 of 13 PageID #: 317
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`The statutory damages awarded for copyright infringement should be sufficient to
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`deter future copyright infringement. See F.W. Woolworth v. Contemporary Arts, 344 U.S.
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`228, 233 (1952); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1554
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`(9th Cir. 1989), cert. denied, 494 U.S. 1017 (1990). Plaintiffs ask the Court to award $5,000
`
`per infringement, for a total damage award of $25,000. Plaintiffs indicate that the
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`Defendants’ failure to pay ASCAP fees for Down Under Pub (Tyler) from June 2004 through
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`the end of 2006 has resulted in fee “savings” of $6,850. (App. 19.) ASCAP also incurred
`2
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`investigation expenses in the amount of $601.82. (App. 19.)
`
`The undisputed evidence indicates that Defendants knew that their conduct violated
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`the copyrights of ASCAP members whose musical compositions were contained in the
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`ASCAP repertoire, necessitating a finding that the Defendants’ infringement was willful.
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`The Court further finds that, given the Defendants’ willful infringement, an award of $5,000
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`per infringement is just and sufficient to deter future copyright violations while promoting
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`respect for the law. Plaintiffs have alleged five individual instances of copyright
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`infringement. Accordingly, the Court finds that the Plaintiffs are entitled to summary
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`judgment in the sum of $25,000 statutory damages.
`
` There is also evidence that Defendants do not have an ASCAP license for their Down
`2
`Under Pub location in Frisco, Texas. Plaintiffs indicate that Defendants have avoided paying
`ASCAP license fees for the Frisco business through the end of 2006 in the amount of $8,650.
`(App. 20.) The Defendants’ total savings by not paying the ASCAP fee is approximately
`$15,500.
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`Page 11 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 12 of 13 PageID #: 318
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`3.
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`Costs and Attorneys’ Fees
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`The Copyright Act grants courts the discretion to award the recovery of full costs and
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`“and a reasonable attorney’s fee . . . as part of the costs.” 17 U.S.C. § 505; see Fogerty v.
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`Fantasy, Inc., 510 U.S. 517, 533, 534 (1994). The Fifth Circuit has stated that, though
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`attorneys’ fees in copyright cases are discretionary, they are “‘the rule rather then the
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`exception and should be awarded routinely.’” Hogan Systems, Inc. v. Cybresource Intern.,
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`Inc., 158 F.3d 319, 325 (5th Cir. 1998) (quoting McGaughey v. Twentieth Century Fox Film
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`Corp., 12 F.3d 62, 65 (5th Cir. 1994). The Fogerty Court identified several factors that may
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`be relevant in the exercise of the Court’s discretion to award attorneys’ fees to a prevailing
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`party, which include frivolousness, motivation, objective unreasonableness concerning both
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`factual and legal components of the case, and the need in particular circumstances to advance
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`considerations of compensation and deterrence. 510 U.S. at 534 n.19 (citing Lieb v.
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`Topstone Industries, Inc., 788 F.2d 151, 156 (3rd Cir. 1986)).
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`In this case, the Court finds no reason why this case should be the exception to the
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`Fifth Circuit’s general rule that attorneys’ fees are routinely awarded. See Hogan Systems,
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`158 F.3d at 325. Liability is undisputed and the Defendants are willful infringers.
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`Accordingly, the Court finds that Plaintiffs should be awarded their reasonable attorneys’
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`fees in bringing this action. The Plaintiffs will be permitted to submit affidavit testimony to
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`support their requested attorneys’ fees.
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`Page 12 of 13
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`

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`Case 6:06-cv-00157-MHS Document 29 Filed 05/11/07 Page 13 of 13 PageID #: 319
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`CONCLUSION
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`For the above stated reasons, the Plaintiffs’ Motion for Summary Judgment is hereby
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`GRANTED. Plaintiffs are entitled to appropriate injunctive relief, statutory damages in the
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`amount of $25,000.00 ($5,000.00 per count) for willful infringement of copyright, reasonable
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`attorneys’ fees, and post-judgment interest on all amounts awarded. It is therefore
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`ORDERED that, within twenty (20) days from the date of the entry of this order,
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`Plaintiffs shall submit a proposed final judgment consistent with this opinion, as well as
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`briefing and evidence supporting Plaintiffs’ request for attorneys’ fees and costs.
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`It is SO ORDERED.
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`Page 13 of 13

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