Broadcast Music, Inc. et al v. GATA'S Statesboro, LLC et al, No. 6:2014cv00121 - Document 16 (S.D. Ga. 2015)

Court Description: ORDER granting 12 Motion for Default Judgment. The Clerk is instructed to enter judgment in favor of Plaintiffs and against Defendants in the total amount of $44,265.00 and to close this case. Signed by Judge J. Randal Hall on 5/28/15. (cmr)

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Broadcast Music, Inc. et al v. GATA&#039;S Statesboro, LLC et al IN THE UNITED Doc. 16 STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION BROADCAST MUSIC, INC.; * MJ PUBLISHING TRUST d/b/a * MIJAC MUSIC; * MJ TWELVE MUSIC; SKYFOREST MUSIC CO., INC.; CONCORD MUSIC GROUP, INC. * * d/b/a JONDORA MUSIC; GEORGE GUY agent of MIC SHAU MUSIC COMPANY; SONY/ATV SONGS LLC; UNICHAPPELL MUSIC INC.; * * * SLOOPY * II INC. d/b/a SLOOPY II MUSIC; * WELSH WITCH MUSIC; MUSIC; E.O. SMITH * BROKEN ARROW MUSIC * CORPORATION; COTILLION MUSIC, INC.; PEPPERMINT STRIPE MUSIC; R AND R NOMAD COMPANY, A * * PUBLISHING * DIVISION OF R AND R NOMAD PUBLISHING CO. CV 614-121 * LLC; * 4U2ASKY ENTERTAINMENT INC.; * SONGS OF UNIVERSAL, * VIRGIN SONGS, INC. INC.; EMI d/b/a EMI * LONGITUDE MUSIC, * * Plaintiffs, '* * v. * * GATA'S STATESBORO, LLC d/b/a * GATA'S * SPORTS BAR & and CHRISTIAN K. GRILL; BENNETT, * individually, * * Defendants. * ORDER Presently Default pending Judgment. Plaintiffs' before (Doc. 12.) the Court For the is Plaintiffs' reasons set Motion forth for below, motion is GRANTED. Dockets.Justia.com I. BACKGROUND Plaintiffs' Complaint alleges copyright infringement based on the public performance and consent to performance of (Compl., Doc. 1, % 28.) compositions. in the Complaint, are copyright Plaintiffs, owners of at Plaintiffs' musical According to the facts alleged other than Broadcast Music, least one of the songs Inc.("BMI"), in this case and have granted BMI the right to license public performance rights. Hf 3-21.) (Id. BMI is a music performing rights organization that licenses the right to publicly perform any of the works in BMI's repertoire by means of "blanket license agreements." At all relevant times, (Loyd Decl., Doc. 12-2, f 2.) Plaintiffs owned the copyrights for the twelve musical compositions involved in this case: "Feel Like Makin' Love," "Piece of My Heart," Song," "Green "Rhiannon," River," "Billie Jean," "Everlong," "Mary Had "Undone a/k/a Undone "Ohio," "Seven Nation Army," "Ain't No Rest and "Simple Man". compositions, a (Compl. 1 32 & Ex. 1.) Little Lamb," - The Sweater for the Wicked," For each of these musical BMI was the licensor- of the public performance rights. (Id. H 32) Defendant Gata's Statesboro, LLC is a limited liability company organized and existing under the laws of the State of Georgia, which operates, maintains Statesboro, Christian and Georgia K. controls Gata's Sport's Bar (Id. H 22.) (the "Establishment"). Bennett is the owner of Gata's & Grill in Defendant Statesboro, LLC with primary responsibility for the operation and management of the limited liability company and the Establishment. According to the reports of (Id. \\ 25-26.) Patrick Dowd, an investigator employed by BMI, he visited the Establishment on April 26, 2013, June 2 6, 2014, and August 19, Exs. A-C.) digital During recorder, made 2014. those (Mullaney Decl., Doc. 12-3, Iff 10-13 & visits, digital Dowd, recordings using of a music battery-powered that was played either live by a band or via satellite radio or other digital sources. (Id., Exs. A-C.) Approximately four to five days after each visit, Dowd submitted the digital audio recording to Department via overnight carrier. John Davis, (Id.) BMI's General Licensing BMI employees Stirling Snow, and Rebecca Delius reviewed the recordings and identified eleven of the compositions identified in this case. Exs. A-C.) submitted Additionally, to technology, a the digital recording review licensed by BMI, through from review identified one no time have agreement from BMI. additional FedEx, First Class mail, 2014 digital composition sought % 4.) email, was audio used to (Id., H 12 & Ex. C.) or ("Green obtained a BMI sent thirty-one and fax to River"), licensing letters via Defendants infringement and advising them of licensing options. 13 & 14.) 29, (Id.) Defendants (Id. ff 10-12 & by Shazam Entertainment Limited, which is identified in this case. At August patented identify any additional recorded musical works. This (Id. warning of (Id. %% 3, 5, 6, Because Defendants failed to respond to the correspondence and continued to offer unauthorized public performance of BMI-licensed music, BMI sent investigator Dowd to the Establishment, on the above mentioned dates, to record music publically performed there. 10-12.) Moreover, BMI (Id. %% employees telephoned Defendants on sixty-four occasions to notify Defendants of infringement and on a number of those occasions spoke to persons associated with the Establishment's operations, including two phone calls with Defendant Bennett. 3 (Id. f 8.) to Defendants did not enter into a license agreement and continued publically repertoire. perform % 9.) (Id. this Complaint or allow performance of Thus, on November 20, 2014, against Defendants, 24, Complaint. 2014, (Docs. Defendants 6 & 7.) were As in BMI's Plaintiffs filed alleging twelve counts of willful copyright infringement in violation of 17 U.S.C. November music of served the § 101. with date of (Doc. 1.) the this Summons Order, Plaintiffs (Doc. 9.) received an entry of On April 14, Default Judgment. (Doc. 2015, on December 22, this 2014. Plaintiffs filed the present Motion for 12.) II. "[D]efendant's default and neither Defendant has answered or otherwise acknowledged the pendency of suit. On default DISCUSSION does entering a default judgment. not in itself warrant the court in There must be a sufficient basis in the pleadings for a judgment entered .... The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law." Nishimatsu Constr. Cir. 1975) .1 admitted the Co. v. Houston Nat'l Bank, A defendant, by his default, "plaintiff's "[T]hree distinct matters judgment: rel. Ga. (1) jurisdiction; Pitts v. well-pleaded [are] 515 F.2d 1200, in of fact." Inc., 321 F. Id. considering any default (2) liability; and (3) damages." Seneca Sports, (5th is only deemed to have allegations essential 1206 Supp. 2d 1353, Pitts ex 1356 (S.D. 2004). 1 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (holding Fifth Circuit decisions made on or before September 30, 1981, are binding precedent in the Eleventh Circuit). 4 A. Jurisdiction Plaintiffs have brought this action for copyright under the United States Copyright Act of 1976, 101. Thus, U.S.C. and 28 U.S.C. 17 U.S.C. Court § 1331. is allegations and the evidence in the record, satisfied that the well-pleaded allegations of Complaint state a cause of action for copyright infringement Defendants pleadings and for that the there is relief a substantive, Plaintiffs compositions, originally authored composed the complied" with copyright (3) the Code, that compositions in the action, the composition, and prove work, formalities States (5) under plaintiff (4) In an the against basis action in the alleging § 101 for public performance of a plaintiff must or sufficient seek. copyright infringement under 17 U.S.C. musical § Liability Based on Plaintiffs' the as amended, this Court has subject matter jurisdiction pursuant to 29 § 1338(a) B. infringement (1) that (2) that Title 17 is the the plaintiff the of plaintiff the proprietor United of the that the defendant publicly performed that the defendant did not have a license from or permission by the plaintiff or his representative to perform the composition. 1325 (M.D. Ga. E. Beats Music v. 2006) (citations Andrews, 433 F. Supp. 2d 1322, omitted). Proof of registration is sufficient to prove the first three elements. at 1325-26. Defendants' See id. The fourth element, public performance, may be proved by affidavit of an investigator. Here, copyright the facts Id. at 1326. alleged in Plaintiffs' liability under 17 U.S.C. § 101. Complaint establish Plaintiffs submitted proof of copyright registration and BMI's right to license the public 5 performance rights of the musical compositions, the first three elements. thereby establishing (Compl. 1 32 & Ex. 1.) Investigator Dowd's certified reports that he recorded the public performance of the music compositions inside the Establishment, BMI employees (Mullaney who Decl., establish that reviewed the Exs. A-C) Defendants as well as the declarations of reports, satisfy the Finally, the failed to procure facts a from Plaintiffs to perform the compositions. fourth element. in the Complaint or permission license (Id. Court finds that Defendants infringed on Plaintiffs' % 4) Thus, the copyrighted works by publicly performing twelve musical compositions without a license, in violation of 17 U.S.C. § 101. Therefore, Plaintiffs are entitled judgment against to default judgment. C. Damages Notwithstanding Defendants, "While the propriety well-pleaded facts allegations in Tuna, LLC, 2011). and character No. 11-0249, Even in the the relating admitted by virtue of default; amount default it remains incumbent on Plaintiffs to prove their damages. plaintiffs' the of of complaint to the rather, damages." 2011 WL default are amount deemed of admitted, damages are not the court must determine both Whitney 4702916, judgment at Nat'l *3 context, Bank v. (S.D. Ala. "[a] court Flying Oct. 4, has an obligation to assure that there is a legitimate basis for any damage award 1266 it enters." (11th Cir. Racism & the Anheuser Busch, Inc. v. Philpot, 2003) ; see also Adolph Coors Co. Klan, 777 F.2d 1538, 1544 317 F.3d 1264, v. Movement Against (11th Cir. 1985) (explaining that damages may be awarded on default judgment only if the record adequately reflects the basis for the award). 6 However, a judicial determination of damages is unnecessary where the claim is for a sum certain or for a sum which can by computation be made certain. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1997); see also S.E.C. v. Smyth, 420 F.3d 1225, i. 1364 n.27 See (11th Cir. 1231 (11th Cir. 2005). Injunctive Relief First, Plaintiffs seek a permanent injunction against Defendants from any further copyright infringement. Under 17 U.S.C. § 502(a), a court "may grant temporary and permanent injunctions on such terms as it may and deem reasonable substantial under likelihood the of circumstances." future Past infringements infringement normally entitle the copyright holder to a permanent injunction against the infringer. Pac. & S. Co. v. Duncan, 744 F.2d 1490, 1499 (11th Cir. 1984). The Court finds a permanent injunction to be proper in this case. Plaintiffs have established both Defendants' likelihood of future infringement. past infringement and the Defendants never sought to obtain a licensing agreement with BMI and continued to publicly perform or allow the performance thirty-one letters of copyrighted and sixty-four Defendants of their infringement. of Defendants' persistent to aforementioned injunction enjoining infringe findings against and phone calls despite from receiving BMI (Mullaney Decl. UK 3-9.) infringement, their potential liability, continue compositions even after warning Because being warned of this Court finds Defendants are likely to on Plaintiffs' of fact, Defendants restraining the Court pursuant Defendants copyrights. to issues 17 U.S.C. Upon a the permanent § 502(a), from publicly performing causing the public performance of any of the Plaintiffs' copyrighted musical compositions and all other compositions in the BMI repertory. 7 or ii. Statutory Damages Second, Plaintiffs seek statutory damages pursuant to 17 U.S.C. 504(c). § Under this section, plaintiffs may elect to receive statutory damages for copyright infringement in an amount not less than $750 per infringement, just." and not to court considers Where the infringement is willful, Id. § 504(c)(1). exceed $30,000, "as the the Court may augment the damages to no more than $150,000. Id. § 504(c) (2) . Factors measure which are to be considered in determining the of statutory damages are: (1) the expenses saved and profits reaped by the Defendant in connection with the infringements; (2) the revenues lost by the Plaintiffs as a result of Defendant's conduct; and (3) the infringers1 state of mind, that is, whether willful, knowing, or merely innocent. Morely Music Co. Fla 1991) v. Cafe Cont'l, Inc., (citing Boz Scaggs Music, 777 F. 491 F. Supp. Supp. 1579, 908, 1583 914 (S.D. (D. Conn. 1980)). In their motion, 504, to seek the Plaintiffs elected, statutory $48,000.00 in Defendants1 infringements. request, total damages statutory of $4,000.00 damages as 12-1, % 9) (Doc. pursuant to 17 U.S.C. per infringement compensation In support for of § or the their Plaintiffs contend that the total statutory damages sought is approximately three times the license fees (estimated by Plaintiffs to be $14,991.60 to cover licensing from March 2012 to the present) which the Defendants would have paid for the Plaintiffs' musical compositions right to publicly perform the during the relevant period. The Court acknowledges that damages ranging from approximately two to four times the license fees have been found to be appropriate measures of damages in similar cases. 930 F.2d 1224, 1229-30 See Chi-Boy Music v. Charlie Club, Inc., (7th Cir.1991) 8 (awarding damages three times the license fees); Supp. 2d 1291, Ala. 2002) 1996) (awarding Entm't Complex, damages Inc., No. the This amount, have Court awards approximately statutory iii. been 851 F. Supp. Doc. 35 1153 times 475, 481 the (S.D. Flyte Time (S.D. Ga. Oct. damages to Plaintiffs in the paid by Defendants over the willful relevant period, is conduct and the need to further infringing conduct. Attorney's Fees and Costs Finally, Plaintiffs seek payment of their reasonable attorneys1 fees and costs under 17 U.S.C. § 505, which provides that "the court in its discretion may allow the recovery of any party . . . [and] prevailing party although attorneys' the routinely." rule may as also part award of a the full costs by or against reasonable costs. rather than the 433 Beker Enters., "In exception and F. Supp. Inc., fee copyright 2d at should be 1327 298 F. Supp. (internal quotations omitted). to cases, the 1316 (S.D. "A showing of willfulness above-stated findings of 9 rewarded (quoting Arista 2d 1310, further justification for such an award." same) . In light of attorney's fees are awarded in the trial court's discretion, E. Beats Music, Inc. v. 2003)) provides three 1146, which is approximately three times the license fees that provide a deterrent to the Defendants' Fla. F. for a total award of $42,000.00. warranted by evidence of Defendants' Records, 924 F. Supp. l:07-cv-065, amount of $3,500.00 per infringement, they are 198 (awarding damages approximately two times the license fees). Therefore, the Inc., (awarding damages three times the Major Bob Music v. Stubbs, Wheeler Tavern, 3, 2008) would v. (awarding damages three times the license fees); 1994) Tunes v. Inc. Dream Dealers Music v. Parker, license fees); Ga. Music, 1296(N.D. Ala. license fees); (S.D. Broad. Id. fact, (quoting the including the Court's determination deterrent to finds "will further v. final that an the request then, for of Inc., is actions infringing award goals Arce Eng'g, task, Defendants' Defendants' Court Inc. that reasonable the determine fees and be attorney's provided, fees 1999). reasonableness costs and that and a the costs See MiTek Holdings, (11th Cir. the willful must Copyright Act." 198 F.3d 840 to attorneys' of conduct were incurred The Court's of in Plaintiffs' bringing this action. "The fee is starting point the number of for hours determining the reasonably multiplied by a 1350 expended reasonable hourly rate." 548 F.3d 1348, (11th Cir. "In determining what is a compensable hours is 2008) of on Bivins v. (internal ^reasonable' ^reasonable,' amount (5th Cir. "lodestar." 1974)." Id. Hous. Auth., Fulton Cnty., the litigation quotations Inc., omitted). hourly rate and what number of the court must consider the twelve Inc., 488 F.2d The product of these two figures After calculating the consider whether i t v. Id. reasonable Wrap It Up, factors2 enumerated in Johnson v. Ga. Highway Express, 714 a lodestar, the Court may then should be adjusted upwards or downwards. 836 F.2d 1292, 1302 151 F. Supp. 2d 1364, (11th 1369 Cir. (N.D. is the Ga. 1988); 2000). Norman Lambert "The v. fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." 2 The twelve factors are: (1) the time and Norman, 836 F.2d at 1303. labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Bivins, 548 F.3d at 1350 n.2. 10 Reasonable Hourly Rate i. "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, "going rate" in the fee Cir. rate. 1990). Cir. and reputation." at 1299. The the community is the most critical factor in setting Martin v. Univ. Knight v. Alabama, (citing Turner v. 1991)). hourly rates of S. Ala., Because in the 824 F. Supp. Sec'y of Air the Court community, 911 F.2d 604, Plaintiffs seek an 1022, 1027 n.l 944 610 F.2d 804, Force, is itself considered it may consult forming an independent judgment. its (11th Doc 12-4, M hourly 10-11.) (N.D. Ala. 808 an (11th expert on own experience in Norman, 836 F.2d at 1303. rate of $385.00 Pumpian's time,3 and $295.00 per hour for Mr. Decl., Id. The relevant legal community is the district in which the court sits. 1993) experience, This Court, per hour Covington. however, has for Mr. (Pumpian previously approved $275.00 per hour as a reasonable billing rate in Statesboro as well Farms, as No. comparable 6:08-CV-96, v. Medcare Express, 12 (S.D. Ga. Oct. market, the N. legal markets. Doc 390 (S.D. Charleston, 14, 2014). Ga. See Oct. LLC et Ojeda-Sanchez 16, 2013); al. , No. v. Bland M. 1.T. , Inc. l:14-cv-081, Doc. Upon consideration of the relevant legal underlying discovery dispute at issue in this case, and counsel's experience and expertise, the Court sets the billing rate at $275.00 per hour for Mr. Covington. ii. Hours Reasonably Expended When exercising proper "billing judgment," attorneys must exclude excessive, redundant, or otherwise unnecessary hours from fee 3Mr. Pumpian has not appeared before the Court as counsel in this case. Accordingly, this Court finds he is not entitled to attorney's fees. 11 applications. 1999). ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. "[H]ours excluded are those that would be unreasonable to bill a client" without reference to the skill, reputation, or experience of counsel. Norman, 836 F.2d at 1301. "[A] lawyer may not be compensated for hours spent on activities for which he would not bill a client rights, of means who recognizing was that seriously in the intent private on vindicating sector the rational person engages in some cost benefit analysis." Plaintiffs provided detailed Covington worked a total of Ex. A.) After requested hours reviewing billing these records, should be compensated. the economically Id. records 6.2 hours on the similar indicating case. Mr. (Pumpian Decl., Court Accordingly, finds that the Court the lodestar in this case to be $275.00/hour at 6.2 hours, the finds or $1,705. Taking into account the filing fees and costs of service of process on Defendants, the total award of fees and costs is $2,265.00. III. Based upon the foregoing, (doc. 12) favor of $44,265.00. is GRANTED. Plaintiffs The CONCLUSION Plaintiffs' motion for default judgment The Clerk is and Clerk is against DIRECTED instructed to enter judgment in Defendants to in TERMINATE total all amount deadlines of and motions , and CLOSE this case. ORDER ENTERED at Augusta, Georgia, this <^3/&_^day of May, 2015. DAL HALL UNITjgg STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 12

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