Opinion
No. 00-4094-SAC.
November 2000.
MEMORANDUM AND ORDER
The case comes before the court on the plaintiffs' motion for default judgment. (Dk. 6). The plaintiffs filed this copyright infringement action in June based on unauthorized performances of three of the plaintiffs' songs on November 12, 1999. On August 31, 2000, the magistrate judge entered an order for the plaintiffs to show cause why this action should not be dismissed as the defendant had not filed an answer or Rule 12 motions within the allotted time and the plaintiffs had not taken any further action. (Dk. 3). The plaintiffs promptly filed an affidavit in support of entry of default, and on September 11, 2000, the clerk entered default against defendant pursuant to Fed.R.Civ.P. 55(a). (Dks. 4 and 5). The plaintiffs followed up with their motion for default judgment filed September 22, 2000. (Dk. 6). More than ten days have passed as of October 10, 2000, without any response filed to this motion.
"Where, as here, `the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 623 (S.D.N.Y. 1998) (quoting 10A C. Wright, A. Miller M. Kane, Federal Practice Procedure § 2688 at 58-59 (3d ed. 1998)). The plaintiffs own the copyrights in three musical compositions that are the causes of action here. The plaintiffs are members of ASCAP which has the right to license non-dramatic public performances of their copyrighted musical compositions. The defendant Danny T. Cochran owns, operates, manages and maintains a place of business for public entertainment in Wichita, Kansas, known as Pure Country.
American Society of Composers, Authors and Publishers
Representatives of ASCAP wrote and visited with the defendant numerous times about securing a license agreement and about his liability for performing copyrighted music without a license. Despite these contacts, the defendant refused to execute a license agreement and to pay the license fees. The plaintiffs' three copyrighted musical compositions were performed at Pure Country when neither the defendant nor his agents nor the performers were licensed or had received permission from the plaintiff or any agent to perform these songs. These songs were performed while the defendant actively supervised Pure Country's operations and financially benefitted from them. The defendant has continued to perform copyrighted music without a license or the plaintiff's permission. The record establishes that the defendant has not appeared, filed an answer, responded to this motion, or otherwise defended himself in this action. Accepting these factual allegations as true, the defendant is liable for infringing the plaintiffs' copyrighted works.
By their motion, the plaintiffs seek injunctive relief, statutory damages of $3,000.00 per action, and costs including reasonable attorneys' fees. The plaintiffs submit detailed affidavits with exhibits that furnish a record sufficient for this court to determine damages and costs with reasonable certainty. For this reason, the court will make these findings without a hearing.
The plaintiffs are entitled to an injunction that bars the defendant from performing publicly their copyrighted compositions or causing or permitting these compositions from being publicly performed on his premises or in any place owned, controlled or conducted by the defendant. The Copyright Act of 1976 provides that "[a]ny court . . . may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U.S.C. § 502(a). "While a matter of discretion, permanent injunctions are typically granted when both a past infringement and a continuing threat of infringement are shown." Walden Music, Inc. v. C.H.W., Inc., No. 95-4023-SAC, 1996 WL 254654, at *6 (D.Kan. Apr. 16, 1996) (quoting Big Tree Enterprises, Ltd. v. Mabrey, No. 93-4024-SAC, 1994 WL 191996, at *8 (D.Kan. Apr. 15, 1994), aff'd, 45 F.3d 439 (10th Cir. 1994) (Table)). "Further, recognizing that plaintiffs in this type of action represent all of ASCAP's members, recent cases have enjoined defendants from performing any or all music in the ASCAP repertory." Jobette Music Co., Inc. v. Hampton, 864 F. Supp. 7, 9 (S.D.Miss. 1994) (citations omitted); see Canopy Music Inc. v. Harbor Cities Broadcasting, Inc., 950 F. Supp. 913, 916 (E.D.Wis. 1997). As the record shows that the defendant willfully and repeatedly infringed the plaintiffs' copyrights and remains a continuing threat to do so, the court permanently enjoins the defendant from performing publicly any musical composition licensed through ASCAP or causing or permitting these compositions from being publicly performed on his premises or in any place owned, controlled or conducted by the defendant.
Copyright plaintiffs proving infringement generally may elect between actual damages and profits or statutory damages. 17 U.S.C. § 504(c)(1). This statute permits statutory damages "in a sum of not less than $750 or more than $30,000" for any one work. The plaintiffs elect an award of statutory damages. This court in Walden summarized the relevant law governing this determination:
"The Court's discretion and sense of justice are controlling as to the sum of statutory damages to award within the given parameters." Schmidt[v. Holy Cross Cemetery, Inc.], 840 F. Supp. [829] at 835 [(D.Kan. 1993)].
In determining an award of statutory damages within the applicable limits set by the Act, a court may consider "`the expenses saved and profits reaped by the defendants in connection with the infringements, the revenues lost by the plaintiffs as a result of the defendant's conduct, and the infringers' state of mind — whether wilful, knowing, or merely innocent.'" 3 Melville B. Nimmer David Nimmer, Nimmer on Copyright § 14.04[B], at 14-41 (1991) (hereinafter "Nimmer ") (quoting Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 914 (D.Conn. 1980)). The Supreme Court has stated that the "statutory rule, formulated after long experience, not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct." F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233, 73 S.Ct. 222, 225, 97 L.Ed. 276 (1952).
N.A.S. Import, Corp. v. Chenson Enterprises, Inc., 968 F.2d 250, 252 (2nd Cir. 1992). "Courts tend to focus on the infringer's intent and set an award that correlates to the `blameworthiness of the infringing conduct.'" Songmaker v. Forward of Kansas, Inc., No. 90-4156-SAC, 1993 WL 484210, at *4 (D.Kan. Sept. 13, 1993) (quoting Almo Music Corp v. T W Communications Corp., 798 F. Supp. 392, 394 (N.D. Mass. 1992) (quoting Milene Music, Inc. v. Gotauco, 551 F. Supp. 1288, 1296 (D.R.I. 1982))). "Often times, the court [will] calculate the owed or anticipated license fees and then award statutory damages that exceed the fees by an amount commensurate with the wrongful conduct and sufficient to deter future violations." Songmaker, 1993 WL 484210, at *4. "The final calculation of statutory damages should still be based on the number of works infringed." Id.
1996 WL 254654, at *5-*6. The detailed affidavit establishes that the plaintiffs through ASCAP have repeatedly attempted to license the defendant's premises, that the defendant has continuously refused to execute a license agreement and pay the license fees, and that the defendant has not refrained from publicly performing the plaintiffs' copyrighted works. Had the defendant been licensed during this period, the defendant would have paid ASCAP nearly $4,000 in license fees to date. ASCAP incurred over $500 in investigative expenses. Based upon careful consideration of the above factors, the court finds that a statutory award in the amount of $3,000 per infringement, for a total of $9,000, takes into account the defendant's saved expenses, is commensurate with the blameworthiness of the defendant's infringement, and is sufficient to deter future violations.
A prevailing party in a copyright infringement action may recover costs and attorneys' fees in the court's discretion. 17 U.S.C. § 505. A fees award "serve[s] as an economic incentive for a copyright holder to use the courts in challenging an infringement." Design v. K-Mart Apparel Corp., 13 F.3d 559, 568 (2nd Cir. 1994). "Though said to be a matter within the court's discretion, attorney's fees are awarded more often as the rule than the exception." Big Tree Enterprises, Ltd. v. Mabrey, No. 93-4024-SAC, 1994 WL 191996, at *8 (D.Kan. Apr. 15, 1994). The court finds that an award of attorneys' fees and costs in this case would serve to make the plaintiffs' whole, to deter infringement, to dissuade the defendant from his continuing disdain for copyright laws, and to encourage the assertion of colorable copyright claims. See Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1230 (7th Cir. 1991). The court finds that the time expended and recorded and the hourly fee rates requested are fair, reasonable and appropriate for copyright litigation in this community and for this case in particular.
IT IS THEREFORE ORDERED that the plaintiffs' motion for default judgment (Dk. 6) is granted and that the clerk of the court shall enter judgment for the plaintiffs as follows:
That the defendant has infringed the plaintiffs' copyrights;
That the defendant, his agents, his servants and employees, and all others acting in concert with him are permanently enjoined from performing publicly any musical composition licensed through ASCAP or causing or permitting these compositions from being publicly performed on his premises or in any place owned, controlled or conducted by the defendant unless and until the defendant receives permission from the copyright owners or becomes properly licensed to perform music from the ASCAP repertory;
That the plaintiffs are awarded statutory damages against the defendant of $3,000 for each infringed work for a total award of $9,000; and
That the plaintiffs are awarded their full costs and attorney's fees totaling $1,967.35.