Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`Civil Action No.
`11-30070-FDS
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`_______________________________________
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`CAROL R. DAGGS,
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`Plaintiff,
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`v.
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`ANTHONY BASS and
`COMCAST OF MASSACHUSETTS II,
`INC.,
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`Defendants.
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`_______________________________________
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`)))))
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`)
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`)))))))
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`MEMORANDUM AND ORDER ON MOTION FOR JUDGMENT ON
`THE PLEADINGS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT
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`This is a case involving copyright infringement. Plaintiff Carol R. Daggs, proceeding
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`pro se, brought this action against defendants Anthony Bass and Comcast of Massachusetts II,
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`Inc. Plaintiff alleges that defendants infringed on her copyright by recording a live musical
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`performance by her and later broadcasting it on a public-access television channel.
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`Daggs contends that Bass videotaped her performance of three original songs at the
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`“Organixsoul” musical showcase in Springfield, Massachusetts, without her permission. The
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`program was later broadcast on Comcast public-access television as part of the City Beat
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`television program; Daggs contends that this broadcast occurred without her knowledge or
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`consent. She seeks both compensatory and statutory damages under copyright law.
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`Defendant Bass has filed a motion to dismiss. Defendant Comcast and plaintiff have
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`filed cross-motions for summary judgment.
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 2 of 16
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`I.
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`Background
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`A.
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`Factual Background
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`The following facts are undisputed, unless otherwise noted.
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`1.
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`Carol Daggs’s Performance
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`Carol Daggs is a musical artist who sings and plays the piano under the name “Jazzage.”
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`(Compl. ¶ 1). She is a member of the American Society of Composers, Authors, and Publishers
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`(“ASCAP”), and holds a copyright for all of her original songs. (Id.).1
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`On October 23, 2010, Daggs performed at the Organixsoul evening showcase at the City
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`Place Inn and Suites in Springfield, Massachusetts. (Compl. ¶ 1). She performed three original
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`songs: “Actions Speak Louder than Words,” “Can You Dig It,” and “Love Is.” (Id.).
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`Daggs contends that she was never informed that the program was going to be recorded.
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`(Id.).2 At the beginning of her set, she noticed a man—later identified as Tony Bass—on the far
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`side of the room recording the show. (Id.). Following her performance, she approached him and
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`introduced herself. (Id.). She identified herself as a member of ASCAP, and requested a
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`courtesy copy of her set of songs. (Id.). Daggs alleges that she was never informed that the set
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`would be broadcast on television, and that Bass never requested permission to use the recording.
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`(Id.). Bass alleges that he informed her that he was the producer of City Beat TV on Comcast.
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`1 Daggs asserts in her complaint that she holds a registered copyright in her original songs; neither
`defendant appears to contest this fact. However, she has not filed with the Court any certificates of registration for
`her songs. In her “Report on the Filing or Determination of an Action or Appeal Regarding a Copyright,” she lists a
`copyright registration number for “Jazzage/Actions Speak Louder than Words,” and indicates that three other
`copyright registration numbers are “pending in process.” (Pl. Report, ECF no. 4).
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`2 Daggs also alleges that she was the opening act that night, and was not aware that the show was being
`recorded prior to her performance. (Compl. ¶ 1). Bass contests this allegation. He alleges that she was not the
`opening act, and was well aware by the time she went on that the show was being recorded. (Def. Answer ¶ 1).
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 3 of 16
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`(Mot. to Dismiss at 1). Both parties agree that he promptly sent her a DVD of the performance
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`at no charge. (Id.).
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`On November 17, 2010, Daggs’s performance aired on Channel 12, Comcast’s public
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`access television channel in Springfield, Massachusetts, as part of City Beat TV. (Comcast’s
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`Statement of Material Facts (“SMF”) ¶ 8; Mot. to Dismiss at 1). Channel 12 is a Comcast
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`public, educational, or governmental (“PEG”) access channel. (SMF ¶ 9).
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`Daggs alleges that at the time, she was not aware that she would be appearing on the
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`show. (Compl. ¶ 2). Some time later, she was informed by children in her church youth choir
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`that they had seen her on television. (Id.). She then contacted both Bass and the producer of
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`Organixsoul to complain about the unauthorized recording and broadcasting. (Id.).
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`2.
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`Comcast Blanket License Agreement with ASCAP
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`Comcast has a blanket license agreement with ASCAP. (SMF ¶ 11). That license was in
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`place in November 2011, when the broadcast at issue here occurred. (SMF ¶ 12). The license
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`provides:
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`ASCAP grants to Licensee and Licensee accepts, for the License Period, a non-
`exclusive, Through-to-the-Audience, license to perform in and as part of Licensed
`Programming over each of Licensee’s Distribution Systems within the United
`States, nondramatic public performances of musical compositions now or
`hereafter during the term hereof in the ASCAP repertory, or as to which ASCAP
`has or shall have the right to grant such license during the term hereof.
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`(Def. Mem., Ex. 2).
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`“Through-to-the-Audience” is defined in the agreement as the “transmission or
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`retransmission of simultaneous or so-called ‘delayed’ performances of music.” (Def. Mem., Ex.
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`2). “Licensed programming” refers to Comcast’s television programming, including PEG
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`programming. (Id.) (“Licensed Programming as used in this Agreement shall mean . . . (b)
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 4 of 16
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`programming on public, educational, and governmental . . . access channels.”). “Licensee’s
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`Distribution Systems” means all cable television distribution systems that Comcast operates.
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`(Id.).
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`B.
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`Procedural Background
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`Plaintiff filed this action on March 18, 2011. Defendant Comcast filed an answer to the
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`complaint on May 4, 2011. Defendant Bass initially failed to respond to the complaint, and an
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`entry of default was entered against him on May 17, 2011. This entry of default was set aside on
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`August 16, 2011; that same day, defendant Bass filed an answer to the complaint.
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`On April 17, 2012, defendant Bass filed a motion to dismiss. Fed. R. Civ. P. 12(b) states
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`that “[a] motion asserting [failure to state a claim] must be made before pleading if a responsive
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`pleading is allowed.” Thus, defendants’ motion to dismiss is untimely because it was made after
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`his responsive pleading was filed. However, Fed. R. Civ. P. 12(c) allows for judgment on the
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`pleading upon a motion that is made “[a]fter the pleadings are closed—but early enough not to
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`delay trial . . . .” Judgment on the pleadings at this stage is both timely and would promote the
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`expedient resolution of this action by obviating discovery or narrowing its scope. Accordingly,
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`although defendant has styled his filing as a motion to dismiss, the Court will treat the motion as
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`one for judgment on the pleadings under Rule 12(c). See Patel v. Contemporary Classics of
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`Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (holding that a motion to dismiss that is filed
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`after the close of pleadings should be construed as a motion for judgment on the pleadings).
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`On April 18, 2012, defendant Comcast moved for summary judgment. Plaintiff cross-
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`moved for summary judgment on May 7.
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`4
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 5 of 16
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`II.
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`Standard of Review
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`A.
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`Judgment on the Pleadings
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`A Rule 12(c) motion for judgment on the pleadings “is treated much like a Rule 12(b)(6)
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`motion to dismiss.” Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). It differs
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`from a Rule 12(b)(6) motion primarily because it is filed after the close of pleadings and
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`“implicates the pleadings as a whole.” Aponte-Torres v. University of Puerto Rico, 445 F.3d 50,
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`54-55 (1st Cir. 2006). Because a Rule 12(c) motion “calls for an assessment of the merits of the
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`case at an embryonic stage,” the court must view the facts contained in the pleadings in the light
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`most favorable to the non-moving party and draw all reasonable inferences to his or her benefit.
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`R.G. Financial Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006).
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`However, to survive a motion for judgment on the pleadings, a complaint must state a
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`claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That
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`is, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . .
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`on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.
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`at 555 (citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’
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`but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556).
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`The court will therefore grant defendants’ motion for judgment on the pleadings if plaintiffs’
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`well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz
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`Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations
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`omitted).
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`B.
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`Summary Judgment
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`Summary judgment is appropriate when the pleadings, the discovery and disclosure
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`materials on file, and any affidavits show that “there is no genuine dispute as to any material fact
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`and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Essentially,
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`Rule 56[] mandates the entry of summary judgment ‘against a party who fails to make a showing
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`sufficient to establish the existence of an element essential to that party’s case, and on which that
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`party will bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st
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`Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
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`determination, the Court views “the record in the light most favorable to the nonmovant, drawing
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`reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
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`When “a properly supported motion for summary judgment is made, the adverse party ‘must set
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`forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty Lobby,
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`Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-moving party may not
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`simply “rest upon mere allegation or denials of his pleading,” but instead must “present
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`affirmative evidence.” Id. at 256-57.
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`III. Analysis
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`Plaintiff contends that defendants’ acts infringed on her copyright. A copyright holder
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`has the exclusive rights of reproduction, preparation of derivative works, distribution,
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`performance, and display. See 17 U.S.C. § 106. Any act that is inconsistent with a copyright
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`holder’s exclusive rights constitutes infringement. See Guedes v. Martinez, 131 F. Supp. 2d 272,
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`276 (D.P.R. 2001). To prevail on a claim for copyright infringement, a plaintiff must
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`demonstrate (1) ownership of a valid copyright and (2) copying of the elements of the work that
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 7 of 16
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`are original. Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir. 2005) (quoting Feist Publ’ns, Inc. v.
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`Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
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`A plaintiff bears the burden of establishing ownership of a valid copyright. Johnson v.
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`Gordon, 409. F.3d 12, 17 (1st Cir. 2005). A plaintiff may make a prima facie case of copyright
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`validity by submitting a certificate of a registration made before or within five years after first
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`publication of the work. 17 U.S.C. § 410(c). Once the plaintiff establishes a presumption of
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`validity, the burden shifts to the defendant to rebut that presumption. See, e.g., Broadcast Music,
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`Inc. v. Rockingham Venture Inc., 909 F. Supp. 38, 43 (D.N.H. 1995).
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`For the purposes of federal copyright law, “[c]opying is a shorthand reference to the act
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`of infringing any of the copyright owner’s five exclusive rights set forth at 17 U.S.C. § 106 . . . .”
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`Jalbert v. Grautski, 554 F. Supp. 2d 57, 67 (D. Mass. 2008) (quoting Ford Motor Co. v. Summit
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`Motor Prods., Inc. 930 F.2d 277, 291 (3d Cir. 1991). Pursuant to 17 U.S.C. § 106, the holder of
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`a valid federal copyright has, among other things, the exclusive right to reproduce the
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`copyrighted work and to perform it publicly. See 17 U.S.C. §106. Intent is not an element of
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`copyright infringement. See 17 U.S.C. § 501.
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`Although she does not refer to it as such, plaintiff also makes a claim under 17 U.S.C. §
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`1101, known as the “Anti-Bootlegging Statute.” This statute broadly prohibits unauthorized
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`creation of and trafficking in sound recordings and music videos. It provides, in relevant part:
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`(a) Unauthorized acts. Anyone who, without the consent of the performer [and
`performers] involved -
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`(1) fixes the sounds or sounds and images of a live musical performance in a copy
`or phonorecord . . . [or]
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`(2) transmits or otherwise communicates to the public the sounds or sounds and
`imagines of a live musical performance . . .
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 8 of 16
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`shall be subject to the remedies in sections 502 through 505, to the same extent as
`an infringer of copyright.
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`17 U.S.C. § 1101. Plaintiff asserts that defendant Bass recorded her live performance without
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`her consent, and later communicated it to the public by broadcasting it on television.
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`A.
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`Defendant Bass’s Motion for Judgment on the Pleadings
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`Defendant Bass asks the Court to dismiss the plaintiff’s claims. His basis for doing so is
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`not entirely clear. He first asserts that her legal claims are “excessive.” He next asserts that he
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`did not acquire the video of her performance illegally, deceptively, or without plaintiff’s
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`knowledge, and that plaintiff had “ample opportunities to advise the defendant . . . to stop
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`videotaping.” (Mot. to Dismiss at 2). He further asserts that there is no “proof of ill-will or
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`intent to cause harm.” (Id.). Defendant also appears assert that plaintiff has unreasonably failed
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`to accept settlement offers.
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`None of those arguments provide an adequate basis for dismissal of plaintiff’s claims.
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`First, it is unclear what defendant means in arguing that plaintiff’s legal claims are “excessive.”
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`Based on the context of this assertion, he seems to suggest that plaintiff did not suffer any harm,
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`and in fact benefitted from his willingness to provide her with a free copy of the recording. This
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`is not a legal basis for dismissing plaintiff’s claims. In a case alleging copyright infringement,
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`there is no requirement that a plaintiff plead any harm beyond the unlawful infringement itself.
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`This argument therefore fails.
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`Next, defendant alleges that he acted with good intentions. This does not provide a legal
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`basis to dismiss plaintiff’s claim. To set forth a claim of copyright infringement, plaintiff does
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`not need to prove that defendant had improper motive or intent; intent is irrelevant to copyright
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 9 of 16
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`infringement, at least at the stage of liability.3 This argument also fails.
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`Defendant further alleges that plaintiff could have asked him to stop taping her
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`performance at any time. Although it is not phrased this way, the Court understands defendant
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`to be contending that, by allowing him to continue recording after she observed him doing so,
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`and by requesting a copy of the recording following her performance, plaintiff impliedly granted
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`him permission to make and use the recording. Implied license is a valid defense to copyright
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`infringement; a copyright owner can make an oral grant of a nonexclusive license, or such a
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`grant can be implied from conduct which indicates the owner’s intent to allow a licensee to use
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`the work. John G. Danielson, Inc. v Winchester-Conant Props., Inc., 322 F.3d 26, 40 (1st Cir.
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`2003). However, on a motion for judgment on the pleadings, the Court must accepts all facts,
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`and any reasonable inferences they support, in the light most favorable to the non-moving party.
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`Here, plaintiff has set forth a plausible allegation of copyright infringement. She alleges that all
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`three songs are covered by copyright. She further alleges that defendant recorded her
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`performance of these songs without her consent, and broadcast them on television without her
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`knowledge or consent. These facts, taken as true, support a claim that defendant infringed on her
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`exclusive right to reproduce the copyrighted work and perform it publicly. They also support a
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`claim that he unlawfully recorded her live performance without her consent. At this stage,
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`defendant’s implied license argument also fails.
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`Finally, defendant alleges that plaintiff has refused reasonable settlement offers. The
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`contents of settlement negotiations are not relevant to the legal analysis, and will not be
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`3 Intent is relevant to the question of whether infringement was willful, and can be important in determining
`the amount of damages.
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 10 of 16
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`considered.
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`Defendant has not demonstrated any basis on which the pleadings fail to state a plausible
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`claim for relief. Accordingly, defendant’s motion to dismiss, treated as a motion for judgment
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`on the pleadings, will be denied.
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`B.
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`Defendant Comcast’s Motion for Summary Judgment
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`Defendant Comcast has moved for summary judgment. It sets forth three bases for its
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`motion: first, that federal law affords Comcast immunity from any suit involving programming
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`on a public-access channel; second, that Comcast’s blanket license agreement with ASCAP
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`provides it with immunity; and third, that Comcast committed no wrongs against the plaintiff.
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`1.
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`Cable Communications Act of 1984
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`Comcast first contends that the Cable Communications Act of 1984 (“the Cable Act”)
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`protects it from liability for copyright infringement.
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`The Cable Act is a federal statute that sets forth a comprehensive regulatory scheme for
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`the cable television industry. Community Television of Utah, Inc. v. Wilkinson, 611 F. Supp.
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`1099, 1102 (D. Utah 1985). It ensures that the cable television medium is available to parties
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`who are not affiliated with cable operators. Specifically, the Cable Act provides that cable
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`operators must set aside a limited number of channels for independent commercial, public,
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`educational, or governmental (“PEG”) programs. 47 U.S.C. § 611; Community Television at
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`1102-03. Cable operators are expressly forbidden from editing the programs carried on these
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`channels. 47 U.S.C. § 612.
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`Because cable operators cannot lawfully exercise editorial control over PEG programs,
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`the Cable Act also shields them from any civil liability resulting from those programs. It
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 11 of 16
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`provides, in relevant part:
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`“Nothing in [47 U.S.C. § 521 et seq.] shall be deemed to affect the criminal or
`civil liability of cable programmers or cable operators pursuant to the Federal,
`State, or local law of libel, slander . . . or other similar laws, except that cable
`operators shall not incur any such liability for any program carried on any
`channel designated for public, educational, governmental use . . . .”
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`47 U.S.C. § 558 (emphasis added). Courts have interpreted this language as forbidding all civil
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`actions against cable operators concerning the content of programs on PEG channels. See, e.g.,
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`Community Television at 1103; see also Playboy Enter., Inc. v. Public Serv. Com’n of Puerto
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`Rico, 698 F. Supp. 401, 403 (D.P.R. 1988).
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`There is no genuine dispute that Comcast is a cable operator. Cable operators are defined
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`under the Cable Act as entities that provide “cable service over a cable system . . . .” 47 U.S.C. §
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`522(5). “Cable service” is defined as video programming and the viewer’s interaction with that
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`programming; “cable system” is defined as the equipment used by the cable company. See 47
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`U.S.C. § 522(6),(7). Comcast fits this criteria. (Def. Mem., Ex. 1 ¶ 2).
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`Further, there is no genuine dispute that the programming at issue in this case is PEG
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`programming. Plaintiff’s complaint alleges that her performance was broadcast on the “City
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`Beat Entertainment Magazine via Public Access Comcast Cable Channel 12.” (Compl. ¶ 1).
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`Channel 12 is a PEG channel. (Def. Mem., Ex. 1 ¶ 6).
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`Plaintiff does not contest that Comcast is prohibited by the Cable Act from regulating the
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`content of programming broadcast through PEG channels, nor does she contest that it exempts
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`them from any potential liability for the content. (Pl. Mem. at 2). Rather, she argues: (1) that
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`“this provision constitutes a gross violation of [her] United States Constitutional Rights under
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`Article 1, section 8; clause 8, which grants protection of copyright . . . ” (Id.); and (2) that
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`Comcast’s PEG Access Operating Procedures prohibit the broadcast of material that violates
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`copyright.4
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`Neither of these assertions provides a basis for piercing Comcast’s immunity from
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`liability. Article I, Section 8, Clause 8 of the Constitution, known as the Copyright Clause,
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`confers a grant of power to Congress to make laws regarding copyright; it does not grant an
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`individual right to plaintiff. The PEG Access Operating Procedures provide guidelines for
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`producers and sponsors of programming that airs on PEG access channels; it does not negate
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`Congress’s grant of immunity to cable operators, and it does not create a cause of action by
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`plaintiff against Comcast.
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`Accordingly, Comcast is immune from civil suit involving the content of programming
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`on its PEG channel.
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`2.
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`Comcast’s Blanket License Agreement with ASCAP
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`Comcast also contends that it is immune from liability because the broadcast of plaintiff’s
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`performance is covered by its blanket license agreement with ASCAP.
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`ASCAP is an unincorporated membership association and performing rights
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`organization. In re Application of MobiTv, Inc, 712 F. Supp. 2d 206, 211 (S.D.N.Y. 2010). It
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`has hundreds of thousands of members and a repertory containing nearly 10 million copyrighted
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`musical works. Id. ASCAP members grant ASCAP the non-exclusive right to license public
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`performances of their music. Id. ASCAP then licenses the entertainers’ public performing rights
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`to broadcasters, hotels, restaurants, nightclubs, and similar establishments. EMI April Music,
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`4 Plaintiff also inserts a claim that Comcast has breached her “Right to Publicity under Massachusetts
`General Law - MGLA § 214 s 3A.” Because this claim was not presented in the complaint, the Court will not
`address it.
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`Inc., v. Caparell’s Inc., 1995 U.S. Dist. LEXIS 10119, at *7 (N.D. Ind. March 17, 1995).
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`A blanket license agreement is one that gives a music user the right to perform all of the
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`works in the repertory of a performing rights organization such as ASCAP as often as they like.
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`In re Application of MobiTv, Inc, 712 F. Supp. 2d at 211. When such an agreement is in place,
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`the licensee pays an annual fee to ASCAP; ASCAP then distributes the collected royalties to its
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`members based on the frequency with which their songs have been performed. Id. A user that
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`holds a blanket license agreement with ASCAP is not required to seek permission from any
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`individual ASCAP member for the use or performance of that member’s music.
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`Comcast and ASCAP entered into a blanket license agreement covering the term from
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`January 1, 2007, to December 1, 2011. The license provides:
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`ASCAP grants to Licensee and Licensee accepts, for the License Period, a non-
`exclusive, Through-to-the-Audience, license to perform in and as part of Licensed
`Programming over each of Licensee’s Distribution Systems within the United
`States, nondramatic public performances of musical compositions now or
`hereafter during the term hereof in the ASCAP repertory, or as to which ASCAP
`has or shall have the right to grant such license during the term hereof.
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`(Def. Mem., Ex. 2).
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`“Through-to-the-Audience” is defined as the “transmission or retransmission of
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`simultaneous or so-called ‘delayed’ performances of music . . . .” (Def. Mem., Ex. 2).
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`“Licensed programming” refers to Comcast’s television programming, including PEG
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`programming. (Id.) (“Licensed Programming as used in this Agreement shall mean . . . (b)
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`programming on public, educational, and governmental . . . access channels.”). “Licensee’s
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`Distribution Systems” means all cable television distribution systems that Comcast operates.
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`(Id.).
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`There is no dispute that plaintiff is a member of ASCAP, and that her music is thus part
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 14 of 16
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`of the ASCAP repertory. (Compl. ¶ 1). Nor is there any dispute that the license agreement was
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`in effect at the time of the broadcast at issue in this case. Rather, plaintiff asserts that the blanket
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`license agreement between Comcast and ASCAP is not relevant to this case. Plaintiff does not,
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`however, present any factual or legal argument to support this contention. The simple assertion
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`that the agreement does not apply is not a sufficient showing to establish the existence of a
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`genuine dispute as to that fact.
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`The blanket license agreement clearly provides Comcast with the right to broadcast any
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`music that is part of the ASCAP repertory, including plaintiff’s. Accordingly, Comcast is a valid
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`licensee of plaintiff’s copyright, and cannot be liable for copyright infringement.
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`3.
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`Wrongdoing by Comcast
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`Defendant also contends that it is entitled to summary judgment because plaintiff has not
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`pleaded any actual wrongdoing by Comcast. Because defendant is immune from liability under
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`both statute and contract, the Court need not address this argument.
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`C.
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`Plaintiff’s Motion for Summary Judgment
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`Plaintiff has cross-moved for summary judgment against both defendants. Plaintiff
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`contends that summary judgment is appropriate because defendants Bass and Comcast “acted
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`collaboratively” to broadcast her performance without permission, despite ample opportunity to
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`request permission. (Pl. Mem. at 8).5 She further contends that their failure to obtain
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`permission was willful, because several weeks passed between the recording and the broadcast,
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`during which time they could have requested permission. (Id.). As to defendant Comcast,
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`5 Plaintiff’s memorandum begins with page number 2. For convenience and to avoid confusion, the Court
`will cite to the page numbers as they are set forth in plaintiff’s memorandum.
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 15 of 16
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`plaintiff contends that the Cable Act violates her constitutional rights, and that the blanket
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`license agreement is irrelevant.
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`For the reasons set forth above, plaintiff’s motion for summary judgment against
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`Comcast will be denied.
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`As to plaintiff’s motion for summary judgment against Bass, the Court must determine
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`whether there is any genuine dispute as to any material fact. For purposes of this motion, the
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`Court will view the record in the light most favorable to Bass. All reasonable inferences will
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`also be drawn in his favor.
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`The evidence currently before the Court indicates that there is a genuine dispute as to at
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`least two issues of material fact, and that accordingly plaintiff is not entitled to judgment as a
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`matter of law. First, plaintiff bears the burden of establishing ownership of a valid copyright.
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`Although she has alleged ownership of copyrights for all three songs, she has not presented
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`evidence establishing ownership of the compositions at issue. If plaintiff is able to come forward
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`with certificates of registration for her songs, the burden will shift to defendant to cast doubt on
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`the validity of her copyrights. Until she does so, however, the burden remains hers, and there
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`remains a genuine issue as to the ownership of a valid copyright. Second, there is a dispute as to
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`whether defendant’s recording of plaintiff’s performance and the subsequent broadcast were
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`authorized. Defendant contends that plaintiff knew he was recording the showcase, knew he was
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`a producer for a television show, and asked him for a copy of the recording. A reasonable
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`factfinder could find that plaintiff’s actions were sufficient to grant defendant an implied license
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`to record and broadcast her performance, and thus provide a valid defense to copyright
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`infringement. Accordingly, the disputed facts regarding plaintiff’s communications with
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`Case 3:11-cv-30070-FDS Document 42 Filed 11/20/12 Page 16 of 16
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`defendant Bass are material to the outcome of this case.
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`There are almost certainly additional disputed facts at issue in the suit. However,
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`because the presence of a single genuine dispute on a material question of fact is sufficient to
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`defeat a motion for summary judgment, the Court need not explore these additional facts here.
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`Plaintiff has failed to demonstrate that she is entitled to judgment as a matter of law.
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`Accordingly, her cross-motion for summary judgment will be denied.
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`IV.
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`Conclusion
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`For the foregoing reasons, defendant Bass’s motion for judgment on the pleadings is
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`DENIED, defendant Comcast’s motion for summary judgment is GRANTED, and plaintiff’s
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`motion for summary judgment is DENIED.
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`So Ordered.
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`Dated: November 20, 2012
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` /s/ F. Dennis Saylor
`F. Dennis Saylor IV
`United States District Judge
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