Opinion
C/A No.: 4:19-391-SAL-KDW
07-22-2020
Broadcast Music, Inc.; Stone Diamond Music Corp.; EMI Consortium Songs, Inc., d.b.a. EMI Longitude Music; House of Fun Music, Inc.; Spirit One Music, a division of Spirit Music Group, Inc.; Rondor Music International, Inc., d.b.a. Irving Music; Boy Meets Girl Music; and Warner-Tamerlane Publishing Corp., Plaintiffs, v. O'Neal Burroughs, LLC, d.b.a. Whiskey Beach Bar and Grill and O'Neal Davis, individually, Defendants.
Report and Recommendation
Plaintiffs filed this action for copyright infringement pursuant to 17 U.S.C. § 101, et seq. (the "Copyright Act"). Compl., ECF No. 1. Defendant O'Neal Davis ("Davis") appeared pro se and filed an Answer. ECF No. 10. Although Davis purported to appear for himself and for the corporate defendant—O'Neal Burroughs, LLC, d.b.a. Whiskey Beach Bar and Grill, ("O'Neal Burroughs, LLC") the court advised him that a corporation could not be represented pro se. ECF No. 24. Although afforded the opportunity to obtain counsel, O'Neal Burroughs, LLC did not do so. Accordingly, the answer filed on behalf of O'Neal Burroughs, LLC was stricken, and default has been entered against O'Neal Burroughs, LLC pursuant to Federal Rule of Civil Procedure 55(a). ECF Nos. 45, 46. The matter proceeded as to pro se Defendant Davis and is now before the undersigned pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a report and recommendation ("Report") regarding Plaintiffs' Motion for Summary Judgment. ECF No. 63. Davis has opposed the Motion, ECF No. 76, and Plaintiffs filed a reply, ECF No. 77. Having reviewed the parties' submissions and the applicable law, the undersigned recommends Plaintiffs' Motion for Summary Judgment, ECF No. 63, be granted. I. Motions for summary judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. All that is required is that "sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 249. "Mere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 F. App'x 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). As Defendant Davis is proceeding pro se the court liberally construes his filings. This liberal construction does not, however, require that the court assume the existence of a genuine issue of material fact if none exists. See Shelley v. Stirling, No. 4:18-CV-2637-JFA, 2020 WL 1899496, at *2 (D.S.C. Apr. 16, 2020) (citing United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012)). II. Facts
A. Certain facts are deemed admitted by Davis based on his failure to respond to Requests for Admission
In seeking summary judgment Plaintiffs set out certain facts as having been deemed admitted for purposes of this litigation because Davis did not submit responses to Plaintiffs' First Request for Admissions ("RFAs"). Pl. Mem. 4; RFAs, ECF No. 63-2 (dated Aug. 30, 2019). Plaintiffs indicate the RFAs were served on August 30, 2019.
Rule 36 of the Federal Rule of Civil Procedure governs requests for admission. A party "may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)" that relate to "facts, the application of law to fact, or opinions about either" and "the genuineness of any described documents." Fed. R. Civ. P. 36(a)(1). Rule 36(a)(3) provides that "[a] matter is deemed admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Rule 36(b) provides, "A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended."
The RFAs were served on or about August 30, 2019, which would have made Davis' responses due 30 days thereafter. In opposing summary judgment Davis does not reference the RFAs, nor does he dispute that he did not submit timely responses to them. As it is undisputed that Davis did not provide timely responses to the RFAs, Davis is deemed to have admitted facts and information set out in the RFAs for purposes of this litigation, including Plaintiffs' Motion for Summary Judgment. See generally Foster v. Nash, No. 2:19-CV-00818, 2020 WL 3318268, at *2 (S.D.W. Va. June 18, 2020) considering admissions in unanswered RFAs to be "conclusively established" in considering motion for summary judgment.
B. Facts deemed admitted or undisputed
As it must, the court considers the facts in the light most favorable to Davis, the nonmoving party. Davis' memorandum does not include a full recitation of relevant facts. Rather, Davis points to several facts included by Plaintiffs, submitting those facts are not undisputed. Davis Mem., ECF No. 76. However, Davis does not address his failure to respond to the RFAs or the deemed admissions made as to facts contained in those RFAs. This recitation of facts is taken largely from Plaintiffs' memorandum but notes the factual issues raised by Defendant. To the extent necessary, additional facts are set out in relevant portions of this Report.
Plaintiff Broadcast Music, Inc. ("BMI"), an entity that licenses the right to publicly perform copyrighted musical compositions works on behalf of the copyright owners of these works, is a "performing rights society" as defined in 17 U.S.C. § 101. Declaration of Jaime DeRensis, BMI Attorney ("DeRensis Decl.") ¶ 3. The other Plaintiffs—Stone Diamond Music Corp.; EMI Consortium Songs, Inc., d.b.a. EMI Longitude Music; House of Fun Music, Inc.; Spirit One Music, a division of Spirit Music Group, Inc.; Rondor Music International, Inc., d.b.a. Irving Music; Boy Meets Girl Music; and Warner-Tamerlane Publishing Corp.—are the copyright owners of various compositions that are the subject of this litigation. As set out in the Schedule incorporated into the Complaint, Plaintiffs allege infringement of the following compositions took place at Whiskey Beach Bar and Grill (sometimes referred to herein as the "Establishment") on the evening of March 31, 2018 through the early morning of April 1, 2018. ECF No. 1-1.
| Claim | MusicalComposition | Writers | Publisher Plaintiffs | Dates ofRegistration |
|---|---|---|---|---|
| 1 | Ain't Too Proud toBeg | Eddie HollandNorman Whitfield | Stone Diamond MusicCorp. | 5/9/66 |
| 2 | Boogie Shoes | Harry Wayne Cayce | EMI Consortium Songs,Inc. d/b/a EMI LongitudeMusic | 8/18/753/27/78 |
| 3 | Holiday | Lisa Stevens, CurtisHudson | House of Fun Music, Inc.;Spirit One Music, a Div.of Spirit Music Group ,Inc. | 4/2/84 |
| 4 | I Can't Help Myselfa/k/a Sugar PieHoney Bunch | Brian Holland,Lamont Dozier,Eddie Holland | Stone Diamond MusicCorp. | 4/2/65 |
| 5 | I Wanna Dance WithSomebody WhoLoves Me a/k/aSomebody WhoLoves Me | George Merrill,Shannon Rubicam | Rondor MusicInternational, Inc. d/b/aIrving Music; ShannonRubicam and GeorgeRobert Merrill, apartnership d/b/a BoyMeets Girl Music | 11/10/96,6/15/87,6/30/87 |
| 6 | Long Train Runnin' | Tom Johnston | Warner-TamerlanePublishing Corp. | 5/14/73 |
Although Davis opposes summary judgment, arguing Plaintiffs have not established infringement as to these musical works, he does not question whether the works are copyrighted. Davis' Answer raised issues about who the publisher plaintiffs were in connection with several songs. ECF No. 10. However, Davis did not reiterate those issues in responding to summary judgment and is deemed to have abandoned them. See generally Jones v. Family Health Ctrs. Inc., 323 F. Supp. 2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in summary judgment motion opposition memorandum has been abandoned); Cousar v. Richland Cnty. Sheriff's Dep't, No. CIV. A. 3:08-392-CMC, 2009 WL 982414, at *6 (D.S.C. Apr. 10, 2009) (same). Further, as noted within, he admitted facts related to the Plaintiffs' ownership interest in the compositions at issue by failing to respond to Plaintiffs' Requests for Admission. See RFAs 12-19, ECF No. 63-2.
Under the Copyright Act, the owners of copyrights in musical compositions possess the exclusive right to authorize public performances of their works. 17 U.S.C. § 106(4). Through agreements with copyright owners such as music publishing companies and independent composers, BMI acquires nonexclusive public performance rights. DeRensis Decl. ¶ 2. BMI has acquired such rights from each of the other Plaintiffs in this action. DeRensis Decl. ¶ 5; RFA 18. BMI, in turn, grants to music users such as broadcasters and the owners and operators of concert halls, restaurants, nightclubs and hotels, the right to publicly perform any of the works in BMI's repertoire by means of "blanket license agreements." DeRensis Decl. ¶ 2. BMI operates as a non-profit-making performing rights organization. It distributes all of the money it collects in license fees from music-user licensees such as the Establishment referenced above as royalties to its affiliated publishers and composers, after the deduction of operating expenses and reasonable reserves. Id. ¶ 3.
O'Neal Burroughs, LLC, through Davis, owns and operates Whiskey Beach Bar and Grill located at 9668 North Kings Hwy., Suite B-l, Myrtle Beach, South Carolina 29572. The Establishment regularly features performances of live and recorded music. See Declaration of Brian Mullaney, BMI Vice President, Sales, Licensing (the "Mullaney Decl.") ¶¶ 1, 3, ECF No. 63-3; RFAs 1-9. On the evening of March 31, 2018 and the early morning of April 1, 2018, Defendant O'Neal Burroughs, LLC operated and maintained the Establishment, had the right and ability to direct and control the activities of the Establishment, and had a direct financial interest in the Establishment. Defendant Davis had the right and ability to supervise the persons employed by Whiskey Beach Bar and Grill on the evening of March 31, 2018 and the early morning of April 1, 2018. Davis was an officer of Defendant O'Neal Burroughs, LLC, and had a direct financial interest in Whiskey Beach Bar and Grill at that time. RFAs 1-7.
BMI learned the Establishment was offering musical entertainment that included the use of works in the BMI repertoire without having obtained a licence from BMI granting permission to publicly perform the copyrighted work. Mullaney Decl. ¶ 3. Between April 2016 and May 2018, BMI repeatedly informed the Establishment, through Defendant Davis, of the need to obtain permission for public performances of copyrighted music. Mullaney Decl. ¶¶ 3-6; see ECF No. 63-5 (copies of some of this correspondence); RFAs 20-22. BMI also made phone calls to the Establishment on 47 occasions, speaking with a representative of the Establishment on some of those occasions. Mullaney Decl. ¶ 8. Defendants failed to enter into a license agreement with BMI. Id. ¶ 9. BMI sent a letter to Defendants on November 1, 2016, instructing them to cease public performances of music licensed by BMI. Additional cease-and-desist letters were sent on February 10, 2017, July 18, 2017, October 10, 2017, December 1, 2017, January 31, 2018, and March 20, 2018. Mullaney Decl. ¶ 6. Between May 2016 and May 2018, BMI offered to grant Defendants a license for the public performance of musical compositions at Whiskey Beach Bar and Grill. RFA 20.
Davis does not question the receipt of these cease-and-desist letters. However, these letters do not seem to be part of the "correspondence" exhibit provided to the court.
BMI sent an investigator to the Establishment on the evening of March 28, 2018 into the early morning of April 1, 2018. The record includes written reports from the investigator and other reports generated regarding the recording made by the investigator during his visit. Mullaney Decl. 10; ex. A to Mullaney Decl., ECF No. 63-4.
Defendants were not licensed by any of the Plaintiffs to publicly perform any of their musical compositions on the evening of March 31, 2018 and the early morning of April 1, 2018. RFA 21. Whiskey Beach Bar And Grill was open to the public on the evening of March 31, 2018 and the early morning of April 1, 2018, and musical compositions were publicly performed at that time. RFAs 8-9. The musical compositions played on the evening of March 31, 2018 and early morning of April 1, 2018 included the following compositions that are the subject of this litigation:
• "Ain't Too Proud to Beg";RFAs 8, 9, 10. By failing to respond to the RFAs Defendants admit that they have no evidence that these compositions were not played at that time. RFAs 11.
• "Boogie Shoes";
• "Holiday";
• "I Can't Help Myself a/k/a Sugar Pie, Honey Bunch";
• "I Wanna Dance with Somebody Who Loves Me a/k/a Somebody Who Loves Me"; and
• "Long Train Runnin'."
Plaintiffs commenced this action for copyright infringement on February 12, 2019. ECF No. 1. III. Analysis
A. Copyright infringement liability
Plaintiffs claim they are entitled to summary judgment because they have presented undisputed evidence of their claims of copyright infringement. Generally, to state a claim for copyright infringement, a plaintiff must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); see generally Earthworks Grp., Inc. v. A&K Props. of S.C., Inc., No. 4:17-CV-01486-SAL, 2020 WL 1703897, at *5 (D.S.C. Apr. 8, 2020) (citing Feist Publ'ns, 499 U.S. at 361). Several district courts within the Fourth Circuit have noted that for a plaintiff to prove copyright infringement by an unauthorized public performance, the plaintiff must demonstrate the following:
(1) the originality and authorship of the works involved; (2) compliance with the formalities of federal copyright law; (3) rightful proprietorship of the copyrights at issue; (4) the copyrighted works were performed publicly for profit; [and] (5) a lack of authorization by the owner or the owner's representative for the alleged infringer to publicly perform the works.Broad. Music, Inc. v. CTR Hotel Partners, LLC, No. 3:12-CV-59, 2013 WL 2444553, at *2 (N.D.W. Va. June 5, 2013) (citing M.L.E. Music v. Kimble, Inc., 109 F. Supp. 2d. 469, 472 (S.D.W. Va. 2000); EMI April Music, Inc. v. Garland Enters., LLC, Civil Action No. DKC 11-3352, 2012 WL 1986529 (D. Md. June 1, 2012); EMI April Music, Inc. v. White, 618 F.Supp.2d 497, 504 (E.D. Va. 2009)).
Plaintiffs seek summary judgment, arguing they have established each element by evidence that is undisputed or is deemed to have been admitted. Pl. Mem. 6-7. Plaintiffs look to the DeRensis Declaration and the RFAs to establish the first three elements—originality and authorship of the subject works, compliance with the formalities of the Copyright Act, and proprietary rights in the subject works. Referring to the Schedule attached to the Complaint (ECF No. 1-1), DeRensis affirms the names of the authors and publishers of each composition, the date of copyright registration and the registration number. DeRensis Decl. ¶ 4, ECF No. 63-6. Attached as exhibit 1A to the DeRensis Declaration are copies of each registration certificate and subsequent documentation relating to the chain of ownership of the songs. ECF No. 63-7. By Davis' failure to respond to the RFAs 22, 24, 26 he has deemed the elements of originality, proper registration, and proprietary interest to be admitted. In RFAs 23, 25, and 27, Davis admits he has no evidence to rebut the Plaintiffs' proof on these three points. In addition, Davis' opposition to summary judgment does not question that Plaintiffs own valid copyrights to the six songs at issue. The undersigned recommends finding Plaintiffs have satisfied the first three elements of their copyright infringement claim as a matter of law.
Plaintiffs establish the fourth element—public performance of the subject works—through several RFAs and through the various Certified Infringement Reports based on a digital recording made by Joshua Ross, who was hired by BMI for the purpose of visiting the Establishment on March 31 - April 1, 2018, making a recording of musical compositions that were performed, and reporting regarding same. The RFAs that establish the public-performance element follow:
• Whiskey Beach Bar and Grill was open to the public on March 31, 2018, and musical compositions were publicly performed on that date. RFAs 8-9.ECF No. 63-2.
• The six songs that are the subject of this action were among those performed at that time. RFA 10.
• Defendants have no evidence controverting that the six songs were performed at Whiskey Beach Bar and Grill. RFA 11.
These admissions by Davis suffice to establish the public performance of the subject works element. Again, the statements have been deemed admitted. Davis does not address the RFAs in opposing summary judgment. Further analysis of the fourth element is not necessary.
In any event, the undersigned has also reviewed the evidence provided by Plaintiffs to show the subject works were publicly performed at Whiskey Beach Bar and Grill on March 31-April 1, 2018. See Mullaney Decl. ¶ 11; ex. A to Mullaney Decl., ECF No. 63-4. This evidence, as amplified by the declaration of BMI Attorney Jason Meares ("Meares Decl."), which was submitted on Reply, ECF No. 77-1, includes the following:
• Certification of Joshua Ross: Ross visited the Establishment on March 31-April 1, 2018 and made an audio recording and a written report regarding the music that was being publicly performed at that time. Mullaney Decl. ¶ 10; Certified Infringement Report submitted by Ross, ECF No. 63-4 at 1-6 (dated Apr. 2, 2018; detailing his visit to the Establishment, including a description of the venue and a partial list of songs performed by band or played by an in-house DJ). Ross certified that he made a digital recording of the music played during the March 31 - April 1, 2018 visit to Whiskey Beach Bar and Grill. The recording was made on an unused Secure Digital ("SD") Card. He sent the
original SD Card to BMI's General Licensing Department by overnight carrier. ECF No. 63-4 at 7.
• Certification of Michelle Baker, BMI Distribution & Administrative Services Manager: Baker certified a list of "Identified Songs" obtained when the SD Card from the March 31-April 1, 2018 recording was placed into automated software that reads music based on metadata and "fingerprints." ECF No. 63-4 at 8-10. This list includes numerous songs marked as "unrecognized."
• Declaration of John Davis: Davis, a BMI employee, listened to the songs on the SD Card recording provided by Ross from Ross' visit to Whiskey Beach Bar and Grill. John Davis Decl. ¶¶ 1-3, ECF No. 63-4 at 11. John Davis testified that based on his knowledge of the genre of music on the SD Card recording he was able to identify the musical compositions performed. Id. ¶ 3. He attaches a two-page list of "Identified Songs." ECF No. 63-4 at 12-13. The six songs that are the subject of this infringement action appear on the list of Identified Songs played at Whiskey Beach Bar and Grill on March 31-April 1, 2018. Id.
The undersigned agrees with Plaintiffs that they have established the fourth element—performance of the subject works—based on this evidence. The court notes Davis' argument in his opposition to summary judgment that neither Ross' partial list of songs nor Baker's list of songs identified by metadata/fingerprinting includes any of the six works that are the subject of this infringement action). Pl. Mem. 2, ECF No. 76. As noted above, though, Davis has effectively waived any such argument by admitting all information when he did not respond to the RFAs and did not argue against the deemed admissions in opposing summary judgment. In any event, the court agrees with Plaintiffs' position on Reply. Davis' observation that the lists provided by Ross and Baker were partial and not identical to the list provided by John Davis does not create genuine issues of material fact such that summary judgment should be denied. As explained by Meares the Ross and Baker Identification Lists are not complete lists. They would have been submitted to the court to establish the necessary chain of custody for the evidence—the SD Card that was listened to by John Davis in compiling his complete list. Defendant Davis also points out the length of time of the recording as captured by metadata/fingerprinting is shorter than the list compiled by John Davis after he listened to the SD Card. Pl. Mem. 2. However, as explained by Meares, the computerized fingerprint identification would not pick up all songs, accounting for the time difference.
To defeat summary judgment the non-moving party must demonstrate that a genuine issue of material fact exists. See Anderson, 477 U.S. at 255. However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. The only evidence is that John Davis, the only person who listened to a full recording of the Whiskey Beach Bar and Grill recording and listed all songs by name, identified the six subject songs as having been performed on March 31-April 1, 2018. Defendant Davis has not provided evidence that disputes John Davis. At most, Defendant Davis has pointed out that the other incomplete lists did not comport with that from John Davis. Defendant Davis does not allege that the six songs were not played at Whiskey Beach Bar and Grill on March 31-April 1, 2018. Summary judgment as to the fourth element is appropriate.
Plaintiffs have established the fifth element—lack of authorization—through RFA 21 and through the numerous letters attached to the Mullaney Declaration. Mullaney Decl. ¶ 11 & ex. A. See also RFA 21 (deemed admission by Davis, "On March 31, 2018 the Defendants were not licensed by any of the Plaintiffs to publicly perform any of their musical compositions at Whiskey Beach Bar and Grill."). In addition, in opposing summary judgment Defendant Davis does not reference this element nor does he argue that he had a license from BMI for the time at issue.
Plaintiffs have established all five elements of demonstrating copyright infringement as to the six subject songs.
B. Vicarious liability
Having established infringement, Plaintiffs must then prove that Defendants are liable for it. Plaintiffs argue that Defendants are vicariously liable for the copyright infringement that took place at Whiskey Beach Bar and Grill. Pl. Mem. 7-9 (citing cases). Defendant Davis does not address this portion of Plaintiffs' argument, thereby conceding this point at the summary-judgment stage. The court could find vicarious liability appropriate without further analysis.
As noted above, default judgment has already been entered against Defendant O'Neal Burroughs, LLC.
The undersigned additionally notes that several of the admissions in the RFAs apply and make summary judgment appropriate on this issue:
• On March 31, 2018, O'Neal Burroughs, LLC and O'Neal Davis operated and maintained Whiskey Beach Bar and Grill. RFAs 1, 3.
• O'Neal Burroughs, LLC and Davis had a direct financial interest in Whiskey Beach Bar and Grill. RFAs 2, 4.
• Davis, an officer of O'Neal Burroughs, LLC, had the right and ability to direct and control the activities of and persons employed by Whiskey Beach Bar and Grill. RFAs 4, 5, 7.
The Copyright Act, as interpreted by the courts, extends personal liability for actions of corporations, LLCs, and officers under certain circumstances. See 17 U.S.C. § 501(a), (b); Universal Furniture Int'l Inc. v. Frankel, 835 F. Supp. 2d 35, 50 (M.D.N.C. 2011), aff'd, 538 F. App'x 267 (4th Cir. 2013) (imposing personal liability on a corporate officer for copyright infringement by the corporation). Joint and several liability for a corporate officer in the context of copyright infringement will lie "where the officer was the dominant influence in the corporation, and determined the policies which resulted in the infringement." Broad Music, Inc. v. It's Amore Corp., No. 3:08CV570, 2009 WL 1886038 (M.D. Pa. June 30, 2009) (citing Sailor Music v. Mai Kai of Concord. Inc., 640 F. Supp. 629, 634 (D.N.H. 1984)). Vicarious liability in the same context will lie where a corporate officer possesses both the right and ability to supervise the infringing activity and an obvious and direct financial interest in the exploited copyrighted materials. Nelson Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 513 (4th Cir. 2002).
Plaintiffs have established as a matter of law that Defendant Davis (and the defaulting corporate Defendant) are vicariously liable for the acts of copyright infringement that took place at Whiskey Beach Bar and Grill on March 31-April 1, 2018. Summary judgment is appropriate. IV. Relief sought
Plaintiffs request permanent injunctive relief, statutory damages for each of the claims of infringement, costs, and reasonable attorney's fees. In opposing summary judgment Davis does not address the relief sought by Plaintiffs. In any event, the undersigned independently reviews the damages sought. Based on the information provided, it appears the court can enter judgment for Plaintiffs.
A. Injunctive Relief
Plaintiffs seek the court's order permanently enjoining Defendants from further acts of infringement. Section 502(a) of Title 17, United States Code, provides that the court may grant final injunctions "to prevent or restrain infringement of a copyright." Here, Plaintiffs have presented evidence that, despite continued communication with Defendants regarding the need to purchase a license to perform copyrighted works, Defendants did not purchase a license. It is recommended that such injunctive relief be awarded.
It should be clear to Defendants that, in the future, they would be well-served to purchase the appropriate licenses each year, including for the current year. Any statutory damages awarded as the result of this litigation do not automatically grant Defendants a license for 2020 or for future years.
B. Statutory Damages
The Copyright Act permits Plaintiffs to elect to receive an award of statutory damages "in a sum of not less than $750 or more than $30,000" per infringement in lieu of an award representing the Plaintiffs' actual damages and Defendants' profits. 17 U.S.C. § 504(c)(1). Further, when a copyright owner "sustains the burden of proving . . . that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." 17 U.S.C. § 504(c)(2). Conversely, if the infringer demonstrates that the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." Id. Within these statutory limits, the assessment of damages is at the discretion of the court. See F.W. Woolworth Co. v. Contemporary Arts. Inc.. 344 U.S. 228, 231-32 (1952).
Here, Plaintiffs suggest they should receive an amount well in excess of the statutory minimum, claiming Defendants' wrongful conduct should be discouraged and punished. Pls. Mem. 11-13. Plaintiffs claim they have demonstrated willfulness on the part of Defendants. Id. They note Plaintiffs' continued communication with Defendants regarding the need for purchasing a license. Mullaney Decl. ¶¶ 3-8, 12-13. This communication began in May 2016. Id. ¶ 3. Plaintiffs specifically suggest that the court consider a total award of $28,700.00. This figure is approximately three times the amount Plaintiffs would have received in licensing fees from Defendants had their establishment properly been licensed from 2016 (when communications began regarding Defendants' need for purchasing a license) until the present. Stated otherwise, the amount sought would approximately equal $4,783.33 for each of the six infringements. Pls. Mem. 12-13. Plaintiffs cite case law suggesting courts "consistently have held that a statutory damages award three times the amount that the plaintiff would have received in licensing fees is appropriate under Section 504(c)." Id. at 13.
The amount of statutory damages to be awarded is, of course, within the court's discretion. Should she adopt this R&R, the district judge is free to make her own determination of the amount of statutory damages to award. Having reviewed the facts presented and considering the parties' relative sizes, Davis' pro se status, and his attempt to participate in this litigation, the undersigned recommends an amount lower than that suggested by Plaintiffs. Rather than award three times the amount of licensing fees from 2016 to present, the undersigned recommends an award that is equal to approximately one time the amount of licensing fees that Defendants would have paid from 2016 through the present, to include a license for the current year. In his Declaration Mullaney indicates the amount that would have been due from 2016 to the date of his affidavit would have been $7,175.00, and the current licensing year's cost would be approximately $1837.50. Mullaney Decl. ¶ 16. The total recommended amount of statutory damages—$9012.50—approximates an award of $1502 per violation, or approximately two times the statutory per-violation minimum.
Although Mullaney's Declaration is dated February 3, 2019, it was filed February 28, 2020. ECF No. 63-3.
C. Attorney's Fees and Costs
The Copyright Act expressly provides that the "court may also award a reasonable attorney's fee to the prevailing party." 17 U.S.C. § 505. The undersigned recommends a finding that Plaintiffs are entitled to the reasonable fees and costs incurred by Plaintiffs in pursuing this litigation. Should the district judge agree with this portion of the Report and Recommendation, the order should permit Plaintiffs' counsel 14 days from the date of the district judge's order to submit a proper petition for attorney's fees and costs in compliance with Federal Rule of Civil Procedure 54(d) and Local Civil Rule 54.02 (D.S.C.). Failure to file such a petition should be considered the waiver of the request for fees and costs. If such a petition is filed, the court may wish to give Defendants 14 days to file any objections to Plaintiffs' fee-and-costs petition and then rule accordingly. V. Conclusion
For the reasons set out above, it is recommended that the district court order the following:
(1) Plaintiffs' Motion for Summary Judgment, ECF No. 53, be granted, and summary judgment be entered in Plaintiffs' favor against each Defendant, jointly and severally;
(2) Defendants be permanently enjoined from further acts of infringement;
(3) Plaintiffs be awarded statutory damages in an amount determined by the district judge (with a proposed recommended amount of approximately $9012.50, which amounts to an award of approximately $1502 per violation for the six established violations); and
(4) At the district court's discretion, Plaintiffs be awarded an appropriate amount of attorney's fees and costs of this action. Plaintiffs must file a properly supported petition for these costs and fees within 14 days of the district court's order.
Please note that default has already been entered as to Defendant O'Neal Burroughs, LLC d.b.a. Whiskey Beach Bar and Grill because it was not permitted to appear pro se and did not obtain counsel to represent its interests. ECF Nos. 45, 46. However, there has not yet been any judgment entered against O'Neal Burroughs, LLC d.b.a. Whiskey Bar and Grill.
IT IS SO RECOMMENDED. July 22, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge