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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF TEXAS
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`DALLAS DIVISION
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`Civil Action No. 3:10-CV—2524-BH
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`§ §
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`§ §
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`§
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`§
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`§
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`§ §
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`BROADCAST MUSIC, INC., et 211.
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`Plaintiff,
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`V.
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`TEX BORDER MANAGEMENT,
`INC., d/b/a FAR WEST, et al.,
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`Defendant.
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`§ Consent Case
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`MEMORANDUM OPINION AND ORDER
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`Pursuant to the Order Transferring Case to Magistrate, filed February 28, 2012, and the
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`consent of the parties, this matter was transferred for the conduct of all further proceedings and entry
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`ofjudgment in accordance with 28 U.S.C. § 636(c).
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`1. BACKGROUND
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`On December 10, 2010, Broadcast Music, Inc. (BMI), Peer International Corporation, CD
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`Elvis Publishing, Luar Music Corp., Songs of Univision, lnc., Fonomusic, Inc., Universal-Songs of
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`Polygram International Inc., Emotional Wrench, Door Number One Music and Ser-Ca Publishing,
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`Inc. (together Plaintiffs) filed this suit against Tex Border Management, Inc. d/b/a Far West (Tex
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`Border Management) and Alfredo Hinojosa (Hinojosa) (together Defendants), alleging violations
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`ofthe Copyright Act. (See doc. I at 1)‘; I7 U.S.C. § 101 et seq. Plaintiffs allege that Defendants
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`owned and operated a nightclub that offered public performances of Plaintiffs’ copyrighted music
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`without a license agreement despite being repeatedly notified that they needed permission for any
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`public performances of copyrighted music.
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`1 Citations refer to the cm/ecf system page number at the top of each page rather than the page numbers at
`the bottom of each filing.
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`

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`The Court conducted a bench trial on June 3, 2013. After consideration of the testimony and
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`evidence presented during the trial, the parties’ post-trial proposed findings of fact and conclusions
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`of law,2 the arguments of counsel, and the relevant authorities, the Court finds and concludes as
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`follows:
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`II. FINDINGS OF FACT3
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`1.
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`BMI operates as a non-profit performing rights organization that licenses the public
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`performance of musical works, including copyrighted musical works of performers and
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`songwriters. (Tr. 12: 12-24.)
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`2.
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`Tex Border Management owned and operated a nightclub known as Far West located at 73 31
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`Graston Avenue, Dallas, Texas 75214.4 (Tr. 148: 17-24.)
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`3.
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`Far West played live music and/or recorded music by karaoke and/or disc jockey in February
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`2008, February 2010, and June 2010.
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`(Ex. 19-24; Tr. 6:10; 14:13-15:8; 26:19-27:16;
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`27:23-28:3-9; 120:11-12; 125:9-10; 129211-13; 130:13-19; 93:22-94:1; 111:9-14; 113:5-9;
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`4.
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`5.
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`113:I0-13; 1l9:18-22; 13032-8; l33:11-17; 138:15-17: 13925-9: 157:3-7).
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`The music performed at Far West was public performance. (Tr. 148:2-4.)
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`Hinojosa was the president of Tex Border Management, lnc., in the Texas Franchise Tax
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`Public Information Reports filed with the Texas Secretary of State in the years 2005 through
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`2Plaintiffs rely heavily on the “stipulated facts” from the First Amended Final Pretrial Order for their
`proposed findings of fact.
`(See does. 74 at 2-10; 7'9 at 1-9.) Only Plaintiffs stipulated to the facts listed in their
`portion of the order, however.
`(See doc. 74 at 2-10.) Defendants did not expressly stipulate to those facts in the
`order. (See id. at 10.)
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`3“Ex.” designates the correspondingjoint trial exhibits and page number. “Tr." designates the transcript of
`the bench trial before the Court, which was filed on June 16, 2013. (Doc. 77.)
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`4 Tex Border Management d/b/a Far West closed in December 2012 and is no longer in existence. (Doc. 77
`at 144, 17] .)
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`2011.
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`(Ex. 6-12; Tr. 35:3-6).
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`BM1 made demands by letter and telephone on Tex Border Management and Hinojosa that
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`they obtain a license to play its music for a period of years 1998 through 2010. (Ex. 15; Tr.
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`14:11-16:7).
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`Between November 1998 and June 2010, BMI offered to grant a license for public
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`performances of its musical compositions at Far West. (Exs. 15, 16', Tr. 14:11—16:7).
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`On February 9, 2008, February 12, 2010, and June 18, 2010, Defendants were not licensed
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`to publicly perform any oftheir musical compositions at Far West. (Tr. 23 :22—25;146:9—1 5).
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`On February 9, 2008, February 12, 2010, and June 18, 2010, BMI’s investigator visited Far
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`West and made audio recordings and written reports of the music performed there. (Ex. 22-
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`24; Tr. 27:2—28:7', 125:1-12', 127:1-8).
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`The audio recordings were analyzed, and BMI identified nine compositions that were in its
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`repertoire.
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`(Tr. 25:20-26:12; 29:1-10; 32:13-17.)
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`The nine compositions are: (1) Estando yo Contigo; (2) Pintame; (3) Amiga Soledad; (4) Un
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`Minuto Mas; (5) Dale don Dale; (6) Cuando Volveras; (7) Almohada Mojada; (8) En El
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`Mismo Terreno; and (9) Wooclfioors a/k/a Wood Floors.
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`(Tr. 6:11-14.)
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`Plaintiffs owned or licensed, and properly registered, the copyright of all nine compositions.
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`(Tr. 30:21-32:20).
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`Plaintiffs lost license fees of$127,000.00 from October 1, 1999 to September 30, 2010, due
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`to Tex Border Managemenfs reihsal to enter into a licensing agreement with them.
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`(Tr.
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`19:23-20:14).
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`10.
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`11.
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`12.
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`13.
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`IV. CONCLUSIONS OF LAW
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`A.
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`Copyright Infringement
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`Plaintiffs argue that Defendants infringed their copyright by publically playing nine of their
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`musical compositions at Far West without permission. (Doc. 7'9 at 5-7.)
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`The Copyright Act grants a copyright owner the exclusive rights to perform or to authorize
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`the performance of the copyrighted work publicly. 17 U.S.C. § 106(4). One who violates any ofthe
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`rights of the copyright owner is an infringer. 17 U.S.C. § S0l(a). To succeed on an infringement
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`claim, a plaintiff must prove the following elements:
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`1)
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`2)
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`3)
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`4)
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`5)
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`the originality and authorship of the compositions involved;
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`compliance with all formalities required to secure a copyright under Title 17
`of the United States Code;
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`that the plaintiffs are the proprietors of the copyrights of the composition[s]
`involved in the action;
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`that the compositions were performed publicly; and
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`that the defendants had not received permission from any of the plaintiffs or
`their representatives for such performance.
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`EM] April Music Inc.
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`12. Jet Rumeurs, Inc, 632 F. Supp.2d 619, 622 (N.D. Tex. 2008) (citations
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`omitted). Copyright registration certificates serve as prima facie evidence of the first three elements
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`ofan infringement claim. 17 U.S.C. § 410(c); Jet Rumeurs, Inc, 632 F. Supp.2d at 622; Collins
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`Court Music, Inc. v. Pulley, 704 F. Supp. 963, 964 (W. D. Mo. 1988) (collecting cases); Virgin
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`Music, Inc. v. NaihcmieZ's, Imz, No. 83~1356, 1984 WL 22064, *1 (WD. Pa. Mar. 7, 1984).
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`The evidence established that Plaintiffs owned the nine copyright-registered musical
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`compositions in question, meeting the first three elements of the infringement claim. (Findings of
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`Fact (FOF), infira, #1 1); see 17 U.S.C. § 410(c). Far West performed the nine musical compositions
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`publically without permission. (FOF ## 4, 8-1 1.) Defendants essentially conceded that Tex Border
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`Management infringed on Plaintiffs’ nine copyrighted musical compositions? (Doc. 80 at 4.)
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`Plaintiffs have met their burden to establish by a preponderance of the evidence Tex Border
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`Management infringed on their copyrights.
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`B.
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`Joint and Several Liability
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`Plaintiffs seek to hold Hinojosa jointly and severally liable with Tex Border Management for
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`the infringements based on his position as its president.
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`(Doc. 79 at 8-10.)
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`“[A]l1 participants in copyright infringement are jointly and severally liable as tortfeasors.”
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`Ferrnara Int’! Melodies, Inc. v. Champions GoHClub. Inc, 712 F. Supp. 1257, 1262 (S.D. Tex.
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`1989) (citing Screen Gems—C0lumbia Music, Inc. v. Metlis & Lebow Corp, 453 F.2d 552, 554 (2d
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`Cir. 1972) afi”d, 915 F.2d 1567 (5th Cir. 1990); Gershwin Publ ‘g Corp. v. Columbia Artists Mgmt,
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`Inc. , 443 F.2d 1159, 1162 (2d Cir.197l)). “Courts have traditionally held the corporate officer will
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`be liable as a joint tortfeasor with the corporation in a copyright infringement case where the officer
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`was the dominant influence in the corporation, and determined the policies which resulted in the
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`infringement.” Crabshaw Music 12. K—Bob’s of El Paso, Inc, 744 F.Supp. 763, 767 (W.D. Tex.
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`1990) (internal quotation marks omitted). An officer of a corporation may be held vicariously liable
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`if the individual had the following: (1) “the right and ability to control the infringing activity”; and
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`(2) “a direct financial interest in that activity.” Jet Rumeurs, Inc, 632 F.Supp.2d at 623; see also
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`5 In addition to conceding Tex Border Managemenfs infringement, Defendants failed to provide any
`evidence or argument in support of the affirmative defenses they listed in the pretrial order. See does. 74 at 10; 79
`at 2-5.) Even assuming that the affirmative defenses were properly raised and asserted, Defendants did not meet
`their burden to establish the defenses by a preponderance of the evidence.
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`5
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`Meadowgreen Music Co. v. Voice in the Wilderness Broad, Inc, 79 F. Supp. 823, 826 (ED. Tex.
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`1992).
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`1.
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`Right and Ability to Control
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`Plaintiffs argue that Hinojosa had “the right and ability to control the infringing activity.”
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`(Doc. 79 at 9.)
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`Courts have found that an individual defendant had the requisite right and ability to control
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`infringing activities when the individual defendant actually had the control over the day-to—day
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`activities, or had sufficient equity interest in the infringing entity to infer the existence of such
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`control. See Broad. Music, Inc. v. Hobi, Inc, 20 F.3d 1171, at *2 (5th Cir. Apr. 9, 1994)
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`(unpublished) (finding that the individual defendant as the sole shareholder and president had the
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`“ultimate authority to police the conduct of his managers and disc jockeys”); Crabshaw Music, 744
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`F. Supp. at 767 (finding that although the individual defendant hired managers to manage his
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`restaurants, he retained the right and ability to supervise the restaurants, even if he had not asserted
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`it); Fermata, 712 F. Supp. at 1262 (finding that the individual defendant was in charge of the day—to—
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`day operations, including hiring and firing of staff); Metered Music, Inc. v. Powell Meredith
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`Commc ’ns C0. , No. Civ.A.1 :04—CV—015—C, 2005 WL 525224 (N.D. Tex. Mar. 2, 2005) (finding that
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`as sole shareholders, the individual defendants supervised and controlled the Company policies,
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`employees, and activities); Rea’ Giant, Inc. v. Molzan, Inc, No. 11-07-2657, 2009 WL 2242349, at
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`*6 (S.D. Tex. July 24, 2009) (finding that the individual defendant “owned the entire interest" in the
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`infringing company); Swallow Turn Music v. Wilson, 831 F. Supp. 575, 579 (ED. Tex. 1993)
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`(finding that the individual defendant was the sole proprietor and thus had the right and ability to
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`supervise the infringing activity). Here, there was no evidence that Hinojosa had any equity interest
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`in Tex Border Management, and he denied having any control over the day—to—day activities of Far
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`West.
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`(Tr.155:24—156:16; 163:18—24; 165:23—166:4.)
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`To show that Hinojosa had the right and ability to control the infringing activity, Plaintiffs
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`assert that “ Hinojosa°s role at Far West .
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`.
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`. included hiring, promoting, marketing, and representing
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`international bands[.]” The trial testimony to which Plaintiffs cite in support ofthis assertion shows
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`that Hinojosa was the president of four different companies owning nightclubs, the president of a
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`record company, the president of a theater company, and that he “bring[s] up a lot of musical acts
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`from Mexico[.]” (Tr. 141 :9—144:13.) None of the testimony related directly to Far West, however.
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`Plaintiffs also rely on I-Iinojosa’s role as the president, incorporator, and registered agent‘ of
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`Tex Border Management as the evidence of “his deep involvement in the management and control
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`of the corporation[.]”
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`(Doc. 79 at 9.) The fact that Hinojosa held these positions does not
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`automatically establish that he had the requisite right and ability to control the infringing activities
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`without more. Hinojosa testified that he was a “concept” man for Tex Border Management, that he
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`did not manage its day-to—day activities, and that he had not hired the DJ and the band who played
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`the infringing musical acts in question.
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`(Tr. 156:7-9, 22-23; 157:3-9; 16123-7; 163117-24.) He
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`further testified that the shareholders of Tex Border Management were the ultimate decision makers,
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`that he had no authority to make decisions on licensing, and that he had taken the letters from BMI
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`to the shareholders. (Tr. 153:2-8; lS6:10—157:1; 161: 18-23; 165:1-10.) Plaintiffs did not provide
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`evidence that identified Hinojosa as a shareholder of Tex Border Management, showed that he
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`managed its day—to-day activities, or otherwise showed that he had actual authority over the
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`5Plaintiffs’ asserted that Hinojosa was the incorporator of Tex Border Management, Inc.
`This assertion is contradicted by the actual evidence.
`(See Ex. 2.)
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`(See doc. 74 at 3.)
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`7
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`infringing activities. Even if Hinojosa’s testimony is taken as not credible, Plaintiffs still failed to
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`bring forward evidence showing that I-linojosa had the right and ability to control the infringing
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`activities. They therefore failed to meet their burden to establish the first element necessary to
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`establish Hinojosa’s joint and several liability by a preponderance of the evidence.
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`2.
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`Direct Financial Interest
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`Plaintiffs also argue that by virtue of Hinojosa’s management contract with Tex Border
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`Management, Hinojosa received a financial benefit directly related to the infringing activities. (Doc.
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`79 at 9-10.)
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`Courts in this Circuit have ruled in favor of finding a “direct financial interest” when the
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`individual defendant, in addition to being an officer and receiving a salary from the infringing
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`corporation, had some equity interest in the Corporation itself. See Fermara, 712 F. Supp. at 1262
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`(finding that in addition to receiving a salary from the infringing corporation, the individual
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`defendant was the president, a director, and the majority shareholder); Meadowgreen Music C0. , 789
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`F. Supp. at 826 (noting that in addition to receiving a salary from the infringing radio station, the
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`individual defendant owned all of the outstanding voting shares of the infringing corporation, was
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`the president of the infringing corporation, and was a general manager of the specific radio station
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`where the infringing activity occurred); Red Giant, Inc, 2009 WL 2242349, at *5—6 (noting that in
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`addition to a $80,000 salary, the individual defendant owned the entire interest in the infringing
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`corporation); Swallow Tum Music, 831 F. Supp. at 579 (finding that the individual defendant was
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`the sole proprietor, and thus had a financial interest in the infringing activity).
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`If the individual
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`defendant has no equity interest in the infringing entity, the party seeking joint and several liability
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`needs to Sl'10W a direct link between the infringing activities and the individual defendant’s financial
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`interest in other ways. See e. g. Sony Discos, Inc. v. E..f. C. Family Partnership, No. H—02-3 729, 2010
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`WL 1270342, at *4 (SD. Tex. Mar. 31, 2010) (noting that the individual defendant’s income did not
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`derive from “a percentage of sales from the infringing vendors. .
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`. [and if] admission, food, and
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`parking sales did increase, the number[] .
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`.
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`. was minor and imperceptible .
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`.
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`. and [the individual
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`defendant’s] benefit was indirect").
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`Here, Hinojosa testified that he did not have an equity interest in Tex Border Management
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`and was not shareholder; he only had a management contract with Tex Border Management, Inc.
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`(Tr. l55:2—5, 155:l2—l56:6.) Plaintiffs provided no evidence to the contrary. Further, there was no
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`evidence that Hinojosa even received a salary from Tex Border Management. Even if he did, no
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`evidence was presented that his salary was a percentage of sales from the nightly performances at
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`Far West. See id.
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`I"Iinojosa’s position as an officer and his management contract with Tex Border
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`Management do not establish that he received a direct financial benefit from the musical
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`performances ofPlaintiffs’ copyrighted works. See e. g., Yesh Music 12. Lakewood Church, No. 4:1 1-
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`CV-03095, 2012 WL 524187, at *7 (S.D. Tex. Feb. 14, 2012) (ruling that merely asserting that the
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`individual defendants were directors of the defendant church and that they had appeared in a
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`television advertisement marketing a infringing product are not sufficient facts for joint and several
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`liability). Plaintiffs failed to meet the burden to show a direct financial interest by a preponderance
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`of the evidence and therefore did not prove the second element necessary to establish Hinojosa’s
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`joint and several liability.
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`Because Plaintiffs failed to meet the burden to show by a preponderance of evidence that
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`Hinoj osa had a direct financial interest in the infringing activities and that he had the right and ability
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`to control the infringing activities, they have failed to establish that he is jointly and severally liable
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`

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`with Tex Border Management for the infringing activities. See Playboy Eaten, Inc. v. Webbworld,
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`Inc, 991 F.Supp. 543, 562 (N.D. Tex. 1997) (“[The plaintiff] did not prove by a preponderance of
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`the evidence that
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`[the individual defendant] should be held liable for vicarious copyright
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`infringement”), afi"d, 168 F.3d 486 (5th Cir. 1999).
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`C.
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`Damages
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`Plaintiffs seek an injunction, statutory damages, and attorneys’ fees. (Doc. 79 at 10.)
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`1.
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`Injunctive Relief
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`Plaintiffs seek to enjoin Tex Border Management from the unauthorized performance of
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`BMI’s copyrighted music in any establishment affiliated with it. (Doc. 79 at 10.)
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`Under the Copyright Act, “[a]ny court havingjurisdiction of a civil action arising under this
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`title may .
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`.
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`. grant temporary and final injunctions on such terms as it may deem reasonable to
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`prevent or restrain infringement of a copyright.” 17' U.S.C. § 502(a). Permanent injunction relief,
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`however, is “never lightly given.” Playboy Enters, Inc, 991 F. Supp. at 561. However, when a
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`copyright infringement occurs, a copyright proprietor is entitled to an injunction prohibiting further
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`infringing performances, Jobete Music C0,, Inc. v. Hampton, 864 F. Supp. 7, 9 (SD. Miss. 1994),
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`as long as the owner satisfies the requirements.
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`To establish entitlement to permanent injunctive relief in copyright infringement cases, the
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`party seeking the injunction must demonstrate the following: “(1) actual success on the merits; (2)
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`no adequate remedy at law; (3) that the threatened injury outweighs any damage to the defendant;
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`and (4) the injunction will not disserve the public interest.” Arisra Records, Inc. v. Kabam‘, No.
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`3:03—CV—l 191—H, 2004 WL 884445, at *4 (N.D. Tex. Apr. 23, 2004) (citing DSC Comm ’ns Corp.
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`v. DG1 Tech, Inc. , 81 F.3d 597, 600 (5th Cir. 1996)). In short, an injunction is appropriate ifliability
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`10
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`has been established and if there is a continuing threat of further infringement of Plaintiffs’
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`copyrights. See Fermata, 712 F.Supp. at 1262; see also Granville v. Suckafiee Records, Inc,
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`ClV.A.H-03-3002, 2006 WL 2520909 at *6—7 (S.D. Tex. June 28, 2006); Cam. P01'ntS0fiware, Inc.
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`v. Nugem‘, 903 F.Supp. 1057, 1060 (ED. Tex. 1995) (“Courts have traditionally granted permanent
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`injunctions where a continuing threat of copyright infringement exists and liability has been
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`established”).
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`“The purpose of an injunction is to prevent future violations[.]” Morrow v.
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`Washington, 277 F.R.D. 172, 200 (E.D. Tex. 2011).
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`Here, Plaintiffs have prevailed on their copyright infringement claim against Tex Border
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`Management, thus establishing the first element. See Pham v. Jones, CIV.A.H-OS-2027, 2006 WL
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`1342826, at *5 (S.D. Tex. May 13, 2006) (“As previously discussed, [the plaintiff] succeed on the
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`merits of his claim and thus sufficiently established the first element required for a permanent
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`injunction”). They failed, however, to show that there is a continuing threat of future infringement.
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`See Fermara, 712 F.Supp. at 1262 (“Courts have traditionally granted permanent injunctions, if
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`liability is established and a continuing threat to the copyright exists”). Plaintiffs cite to Tex Border
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`Management’s willful disregard of Plaintiffs’ warning letters in the past.7 (doc. 79 at 10-11.)
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`Hinojosa testified at the trial that Tex Border Management was no longer in existence, however, and
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`there was no evidence to the contrary.
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`(Tr. 171 :3-6.) Its past willful infringements therefore does
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`not establish a continuing threat of future infringement. (Tr. 144: 15-22; 17113-6.) Plaintiffs failed
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`to put forth evidence that there was a likelihood that Tex Border Management would infringe on
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`Plaintiffs’ copyright in the future.
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`(See doc. 79 at 10-11); Morrow, 277 F.R.D. at 200. Plaintiffs’
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`(Doc. 79 at 10.) As Hinojosa is notjointly and severally
`7Plaintiffs also cite to Hinojosa’s 2005 agreement.
`liable to the copyright infringements, the 2005 agreement is not relevant to the permanent injunction analysis.
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`11
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`request for a permanent injunction is denied.
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`2.
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`Statutory Damages
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`Here, Plaintiffs seek statutory damages of $20,000 for each musical compositions infringed.
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`(Doc. 79 at 13; Tr. 36:4-8.) Plaintiffs’ suit involves nine independent copyrighted musical
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`compositions, thus bringing the total statutory damages to $180,000. (Doc. 79 at 12.) This is less
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`than twice the unpaid licensing fees Plaintiffs would have received from Tex Border Management.
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`(See id; FOF #13.)
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`Once copyright infringement has been found, “the copyright owner may elect, at any time
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`before final judgment is rendered, to recover, instead of actual damages and profits, an award of
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`statutory damages for all infringements involved in the action, with respect to any one work .
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`.
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`. in
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`a sum ofnot less than $750 or more than $3 0,000 as the court considersjust.” 17 U.S.C. § 504(c)(1).
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`If a court finds that “the infringer was not aware and had no reason to believe that his or her acts
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`constituted an infringement of copyright, the court in its discretion may reduce the award of statutory
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`damages to a sum of not less than $200,” but if the court finds “that infringement was committed
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`willfully, the court in its discretion may increase the award of statutory damages to a sum of not
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`more than $150,000.” 17' U.S.C. § 504(c)(2).
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`Under § 504(c), courts must award damages according to the number of separate and
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`independent works infringed. Broad. Music, Inc. v. Xcmrhas, Inc, 855 F.2d 233, 237 (5th Cir. 1988);
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`see also Walt Disney Co. v. Powell, 897 F.2d 565, 569 (DC. Cir. 1990) (“Both the text ofthe
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`Copyright Act and its legislative history make clear that statutory damages are to be calculated
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`according to the number of works infringed, not the number of infringements”). The amount
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`awarded must also be within the statutory limits. Golden Torch Music Corp. v. Lic/1elie’s Inc,
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`12
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`Civ.A. No. W—86—CA-005, 1987 WL 14543, at *4 (WD. Tex. Jan. 26, 1987). “A court may consider
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`both restitution and deterrence when formulating the ‘just’ amount of damages.” WB Music Corp.
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`v. Big Daddy ’s Erzrm ’z‘, Ina, EP—05—CA-267-PRM, 2005 WL 2662553, at *4 (W.D. Tex. O0. 19,
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`2005). The damages to be assessed, however, are within the broad discretion of the trial court.
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`Golden Torch Music‘ Corp, 1987 WL 14543, at *4.
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`The evidence shows that Plaintiffs first contacted Tex Border Management (i.e. Far West)
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`through Hinojosa in 1998, offering licensing agreements, and Plaintiffs continued mailing letters to
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`Defendants until the last correspondence on June 30, 2010. (Tr. 15 at 2l—l6:7.) At least one of the
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`letters notified Defendants that Plaintiffs had confirmed that copyright infringement had occurred
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`at Far West, and they attempted to resolve the licensing issue. (Tr. l9:1—l-4.) Plaintiffs also spoke
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`to various people at Tex Border Management, including Hinojosa, urging Tex Border Management
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`to enter into a licensing agreement with BM1. (Tr. 16:15-17:20.) It never responded. (Tr. 16:8-14;
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`23:22-25; 164:25—165:12.) The continual attempts by Plaintiffs to obtain a licensing agreement with
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`Tex Border Management over a span of a decade, and Tex Border Managemenfs corresponding
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`silence, show Tex Border Management’s willful disregard of BMI’s legal rights. WB Music Corp. ,
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`2005 WL 2662553, at *4 (“A court may infer willfulness from evidence that notice of a valid
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`copyright was provided to the defendant prior to the infringement”).
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`For the nine infringements by Tex Border Management, the Court awards $20,000 per
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`musical composition infringed as requested by Plaintiffs, making the total statutory damages as
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`$180,000. This amount is appropriate given the willful infringements by Tex Border Management.
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`See id. (“[W]hen calculating statutory damages against establishments that publicly perform musical
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`compositions without first obtaining a license, courts frequently reach an award that is three to five
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`times the licensing fee owed by the defendant.
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`.
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`.
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`. The intent behind such awards is to show
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`defendants that it is more costly to infringe than to obey copyright laws.” (citations omitted)).
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`3.
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`Attorneys’ Fees and Costs
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`Plaintiffs seek $8,210 in costs and $1 17,003 in attorneys’ fees for a total of$l2S,213. (Doc.
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`79-1 at 3.)
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`Section 505 of the Copyright Act provides that “the court in its discretion may allow the
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`recovery of full costs by or against any party .
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`.
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`. the court may also award a reasonable attorney’s
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`fees to the prevailing party as part of the costs.” 17 U.S.C. § 505; see John Perez Graphics &
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`Design, LLC v. Green Tree Inv. Group, 1nc.,No. 3:12-cv-4194-M, 2013 WL 1828671, at *5 (N.D.
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`Tex. May 1, 2013). Although left to the trial court’s discretion, an award of attorneys‘ fees in
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`copyright infringement cases is “the rule rather than exception and should be awarded routinely.”
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`Micronranipularor, Co. v. Bough, 779 F.2d 255, 259 (5th Cir. 1985). There is “no precise formula”
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`to decide whether to grant attorneys’ fees under § 505, but some non-exclusive factors are:
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`“frivolousness, motivation, objective unreasonableness (both in the factual and in the legal
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`components of the case) and the need in particular circumstances to advance consideration of
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`compensation and deterrence.” Fogerty v. Fantasy, Inc, 510 U.S. 517, 534 n.19 (1994). Finding
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`of willful infringement also may guide the court’s decision. EM]/lpril Music, Inc. v. Know Group,
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`LLC, No. 3:05—CV-1870~M, 2006 WL 3203276, at *5 (N.D. Tex. Nov. 6, 2006) (Lynn, J.).
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`After a decade—long attempt to come to an agreement, Plaintiffs are entitled to the reasonable
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`fees and costs incurred to defend their legal rights against Tex Border Managernent’s willful
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`infringements. Owners of copyrights should be able to protect their work. Plaintiffs provided an
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`affidavit by its counsel detailing where the costs were incurred as well as the time and rates of the
`
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`attorneys, and copies of attorneys’ billing records for legal services. (Docs. 79-1; 79-2; 79-3.) The
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`Court finds that the affidavit and the invoices show that the costs and fees incurred are reasonable
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`under the circumstances of the case and awards Plaintiffs the full amount requested. See Jet
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`Rumeurs, Inc, 632 F.Supp.2d at 626; Jabete Music Co., Inc, 864 F.Supp.at 10.
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`V. CONCLUSION
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`For the reasons stated above, the Court finds that Tex Border Management has willfully
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`infringed on Plaintiffs’ nine copyrighted musical compositions, and that it is liable to Plaintiffs for
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`statutory damages in the amount of $180,000, and attorneys’ fees and costs in the amount of
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`$125,213, against Tex Border Management.
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`SO ORDERED on this the 31st day of March, 2014.
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`/I
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`
`
`RMA CARRILLO RAM REZ
`UNITED STATES MAGISTRATE JUDGE
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`15