EMI APRIL MUSIC INC. et al v. RODRIGUEZ et al, No. 1:2009cv00432 - Document 22 (M.D.N.C. 2010)
Court Description: MEMORANDUM OPINION signed by JUDGE THOMAS D. SCHROEDER on 3/8/10, for the foregoing reasons, Plaintiffs' motion for default judgment (Doc. 18 ) shall be granted, and Defendants shall be enjoined permanently from further copyright infringement o f the protected works to which Plaintiffs hold a right to grant licenses or which are in the repertory of ASCAP. Plaintiffs shall recover statutory damages in the amount of $77,803.14, reasonable attorneys' fees in the amount of $4,136, and costs in the amount of $523.56. (Law, Trina)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EMI APRIL MUSIC INC., YELAPA SONGS, UNIVERSAL-POLYGRAM INTERNATIONAL PUBLISHING, INC., SONY/ATV HARMONY,BYEFALL PRODUCTIONS INC., GWEN STEFANI D/B/A HARAJUKU LOVER MUSIC, WORD MUSIC, LLC, SONG OF CASH MUSIC, AND WAYNE GOODINE MUSIC, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, v. ESTUARDO VALDEMAR RODRIGUEZ And LEONOR RODRIGUEZ, Defendants. 1:09CV432 MEMORANDUM OPINION Before the court is a motion for default judgment filed by Plaintiffs seeking certain relief for copyright infringement. (Doc. 18.) Default has been entered against Defendants, who have failed to respond to the present motion. For the reasons set forth below, the motion will be granted. I. BACKGROUND This is Plaintiffs an action copyrights for alleged in six willful musical infringement compositions of by unauthorized performances at WLLQ radio station in Chapel Hill, North Carolina, Carolina, owned and and WLLY radio operated by station Defendants in Wilson, under granted by the Federal Communications Commission. a North license Plaintiffs are members of the American Society of Composers, Authors and Publishers ( ASCAP ), which holds a non-exclusive right to license non-dramatic public performances of their copyrighted musical compositions. Plaintiffs allege that Defendants willfully infringed copyright by giving public performances of the following protected compositions from January 29, 2008, through March 25, 2008: Corazon Espinado, Toxic, The Sweet Escape, Some Golden Daybreak, Over the Next Hill We ll Be Home, and I Bless Your Name. (Doc. 1.) The complaint seeks injunctive relief, unspecified statutory damages between $750 and $150,000, and costs and reasonable attorneys fees. Plaintiffs copies of it filed and their complaint summonses were on served (Id.) June 17, 2009, on Defendant. each and Defendants failed to respond to the complaint, and on July 16, 2009, defaults were entered against them. (Doc. 17.) Plaintiffs moved for default judgment on September 24, 2009, and served notice on Defendants. (Doc. 18.) Defendants have failed to file any response. II. ANALYSIS Federal Rule of Civil Procedure 55(b)(2) requires that a plaintiff apply to the court for a default judgment where the claim is not for a sum certain. Though the motion for default judgment is unopposed, the court must exercise sound judicial discretion to determine whether 2 default judgment should be entered as a matter of right. EMI April Music, Inc. v. White, 618 F. Supp. 2d 497, 505 (E.D. Va. 2009) (citation omitted). Defendants were properly served summonses and failed to respond. Plaintiffs motion for default with the complaint and They were also served with judgment. Plaintiffs have supported their motion for default judgment with a memorandum of law as well as two affidavits detailing ASCAP s dealings with Defendants, evidence of infringement, evidence related to the damages sought, and costs prosecution of this case. and attorneys fees expended in Defendants similarly failed to appear or indicate any desire to respond to the motion. Plaintiffs represent that Defendants are not infants, incompetents or in the military service. Defendants recalcitrance should not delay Plaintiffs entitlement to relief, and the court concludes that a default judgment is appropriate in this case. SEC v. Lawbaugh, 359 F. Supp. 2d 418, 421 (D. Md. 2005) (noting that judgment by default is available where the adversary process has been halted because of an essentially unresponsive party ). A. Injunctive Relief Under the Copyright Act of 1976, this court may grant an injunction to prevent or restrain copyright infringement. U.S.C. § 502(a). 17 Injunctive relief is appropriate where the nature of the infringement prevents a plaintiff from obtaining 3 an adequate remedy at law. Jasperilla Music Co., M.C.A., Inc. v. Wing s Lounge Ass n, 837 F. Supp. 159, 161 (S.D.W.Va. 1993) (citation omitted). infringement has A permanent injunction is appropriate where been infringement exists. proven and a threat of continuing Bonnyview Music Corp. v. Jones E. of the Grand Stand, Inc., No. C.A. 4:92-0971-21, 1992 WL 459580, *3 (D.S.C. Nov. 9, 1992). A permanent injunction is not automatic, however, and a plaintiff must satisfy the traditional analysis. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391-94 (2006). In eBay, the Court noted: According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 391. In manager this of Affidavit ), case, ASCAP s the affidavit Broadcast establishes that of Pamela Licensing Defendants Blank, account Department ( Blank have operated stations WLLQ and WLLY in violation of copyright law. radio WLLQ and WLLY were treated as licensed by ASCAP prior to June 22, 2007, but Defendants consistently failed to pay license fees and meet other obligations owed to ASCAP. 4 As a result, ASCAP, after due notice, informed Defendants it would no longer treat their radio stations as licensed. This notice was sent only after repeated requests for payment of past due license fees and reminders of Defendants liability under United States copyright law. Notwithstanding such notices and warnings, Defendants continued to perform copyrighted music, including the six performances sued on, without permission by broadcasting over radio stations WLLQ and WLLY. Further, Defendants own and operate six other radio stations in North Carolina. Although Defendants have not licensed any of these stations by ASCAP either, all continue to perform ASCAP-copyrighted music without permission. Defendants failure to appear in this litigation demonstrates their refusal to acknowledge continued their legal infringement obligations, likely, makes and the threat underscores of the ineffectiveness of a remedy at law. The court finds that Defendants have infringed Plaintiffs copyrights intentional. and that Based such on infringement the above, the was court willful and finds that Plaintiffs have suffered irreparable injury, monetary damages are inadequate to provide a complete remedy, the balance of hardships tips in Plaintiffs favor, and the public interest is served by protecting Plaintiffs intellectual property rights through enjoining further violations. 5 B. Statutory Damages The Copyright Act provides that a copyright owner may elect to recover, in lieu of actual damages and profits, an award of statutory damages in a sum of not less than $750 or more than $30,000, as the court considers just. 17 U.S.C. § 504(c)(1). In the case of willful infringement, the court may increase the award of statutory damages to an amount not exceeding $150,000 for each composition infringed. determination of the amount of 17 U.S.C. § 504(c)(2). damages within range lies within the court s discretion. the the court profits reaped by can the consider are defendants the in statutory F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-32 (1952). factors The Among the expenses saved and connection with the infringements, the revenues lost by the plaintiffs as a result of the defendants conduct, and the infringers state of mind whether wilful, knowing or merely innocent. Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 914 (D. Conn. 1980). The standard for willfulness is whether the defendant knew that his conduct represented infringement or recklessly disregarded that possibility. Hamil Am., Inc. v. GFI, 193 F.3d 92, 97 (2d Cir. 1999). Where damages a based plaintiff on a seeks statutory defendant s rather knowing and than actual deliberate infringement, courts typically award substantially more than the 6 minimum of statutory damage and more than an infringer would have paid in license fees. See, e.g., EMI April Music, 618 F. Supp. 2d at 508-09; Broadcast Music, Inc. v. Boogie Down Prods., Inc., No. 1:04-CV-3526, 2006 WL 2619820 (N.D. Ga. May 9, 2006); Jobete Music Co., Inc. v. Media Broad. Corp., 713 F. Supp. 174 (M.D.N.C. 1988). As the Supreme Court has noted, an award of substantial statutory damages serves the deterrent purpose of the statute: [A] rule of liability which merely takes away the profits from an infringement would offer little discouragement to infringers. It would fall short of an effective sanction for enforcement of the copyright policy. The statutory rule, formulated after long experience . . . also is designed to discourage wrongful conduct. F.W. Woolworth, 344 U.S. at 233. At a minimum, it should not cost less to violate the statute than to comply with it. EMI April Music, 618 F. Supp. 2d at 508 (citing Music City Music v. Alfa Foods, Ltd., 616 F. Supp. 1001, 1003 (E.D. Va. 1985)). In this case, Plaintiffs offer no proof of actual damages but instead seek statutory damages. Plaintiffs have established that Defendants knowingly and deliberately infringed Plaintiffs copyrights. pay Defendants were well aware of their obligations to Plaintiffs copyrighted works license aired fees on for radio musical stations performances WLLQ and of WLLY. However, even after ASCAP informed Defendants it would no longer treat their stations as licensed and made repeated requests for 7 payments of past due license fees and gave reminders of their liability under copyright law, Defendants continued to perform copyrighted music without permission virtually every hour that their stations were on the air. Moreover, Defendants continue to play copyrighted music over at least six other radio stations they own and operate in North Carolina without payment of license fees. 1 The court finds that Defendants actions demonstrate that statutory damages in excess of unpaid ASCAP license fees are appropriate as a effective sanction. Plaintiffs have established that had Defendants radio stations WLLQ and WLLY been properly licensed by ASCAP, they would owe approximately $38,901.59 ($25,520.50 for radio station WLLQ and $13,381.09 per radio station WLLY). Plaintiffs request an award of $19,000 for infringement, for a total of $114,000, an amount less than three times the license fees that would have been owed had Defendants properly been licensed. In light of the evidence that Defendants have continued to violate copyright virtually every hour their stations are on the air, the damages court, in the in its amount discretion, of $77,803.14 1 concludes is that statutory appropriate. This Evidence of infringement on Defendants six radio stations not made the basis of the complaint is considered solely for the purpose of assessing Defendants willfulness and the amount of damages that should be imposed for the six compositions made the basis of this case; the court does not award damages for performances on stations not made the basis of the complaint. 8 amounts to $12,967.19 per violation and represents twice the proper license fee had Defendants complied with law. See EMI April Music, 618 F. Supp. 2d at 509 (imposing statutory damages approximately twice the license fee); EMI Mills Music, Inc. v. Empress Hotel, Inc., 470 F. Supp. 2d 67, 76 (D.P.R. 2006) (imposing statutory damages of $15,000 per infringement for a total of $60,000, approximately three times the remaining payments due on the license fee). C. Costs and Reasonable Attorneys Fees The court reasonable may award attorneys a prevailing fees. 17 party U.S.C. § full 505. costs and Costs and attorneys fees are not awarded as a matter of course; rather, both lie wholly in the court s discretion. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). In determining whether an award of attorneys fees should be made for copyright violations under 17 U.S.C. § 505, the Fourth Circuit has articulated four factors for consideration: (1) the motivation of the parties; (2) the objective reasonableness of the legal and factual positions advanced; (3) the need in particular circumstances to advance considerations of compensation factor. and deterrence; and (4) any other relevant Diamond Star Bldg. Corp. v. Freed, 30 F.3d 503, 505 (4th Cir. 1994) (citation omitted). In this case, Plaintiffs motivation was to vindicate its rights granted by Congress under 9 the Copyright Act. factual Plaintiffs demonstrated that their legal and positions are objectively reasonable. Indeed, Defendants failed even to respond to the lawsuit. to Plaintiffs multiple warnings and In response attempts to obtain compliance, Defendants simply thumbed their noses at their legal obligations. This is a textbook case of the need to encourage the of bringing such actions matter have been repudiated. where attempts to resolve the The court finds, therefore, that an award of attorneys fees is appropriate. Plaintiffs have supported their requests for attorneys fees with a declaration of its counsel, Michael J. Allen. determining the reasonableness of any fee award, the In court applies the factors set forth in EEOC v. Serv. News. Co., 898 F.2d 958, 965 (4th Cir. 1990). Each factor is addressed in turn, where applicable. 1. Time and Labor Expended Plaintiffs counsel has to date expended 12.1 hours, and his paralegals have expended 5.5 hours. 2. The common Novelty/Difficulty of Questions Raised court and are acknowledges handled by that copyright specialized actions lawyers, unusual questions of law were presented in this case. 10 are although not no 3. Skill Required to Perform Legal Services Familiarity Plaintiffs with counsel, who copyright has laws handled is required, copyright and cases 25 for years, has considerable expertise in this area. 4. Counsel s Opportunity Costs in Pressing the Litigation No lost opportunity costs has been identified by counsel in his handling of this matter. 5. Customary Fee for Similar Work Counsel charged $285 per hour for his time and $125 per hour for his paralegals. well within the The court finds that these amounts are customary rates in the prevailing legal community. 6. Counsel Counsel s Expectations at the Outset of Litigation has obtained the desired result in obtaining injunctive relief and statutory damages. 7. Limitations Imposed by the Client or the Circumstances None was identified. 8. Amount in Controversy and Results Obtained The amount of recovery is not insignificant, and counsel has obtained favorable compensation. 9. Counsel s Experience, Reputation and Ability As previously mentioned, Mr. Allen enjoys a reputation as a specialist in copyright and trademark law. 11 He is a frequent lecturer on the topic, active in the American and North Carolina Bar Associations Intellectual Property Law sections, lectures on copyright law and litigation at the college level, and has served as an expert consultant in a copyright and infringement litigation matter. 10. Undesirability of the Case Within the Legal Community This factor does not apply in this case. 11. Nature and Length of the Professional Relationship Between the Attorney and the Client This factor has not been identified by counsel. 12. Attorneys Fees and Awards in Similar Cases Plaintiffs represent that they have incurred costs in the amount of $523.56 and attorneys $4,136.00, for a total of $4,659.56. fees in the amount of The requested fee award is reasonable, compares favorably with that of similar cases, and therefore shall be awarded. Cf. EMI April Music, 618 F. Supp. 2d at 513 (awarding $2,875 in attorneys fees and $417.59 in costs); Jobete Music, 713 F. Supp. at 180 (awarding costs and fees of $2,432.47). III. CONCLUSION For the foregoing reasons, Plaintiffs motion for default judgment (Doc. 18) shall be granted, and Defendants shall be enjoined permanently from further copyright infringement of the protected works to which Plaintiffs 12 hold a right to grant licenses or which are in the repertory of ASCAP. Plaintiffs shall recover statutory damages in the amount of $77,803.14, reasonable attorneys fees in the amount of $4,136, and costs in the amount of $523.56. /s / Thomas D. Schroeder United States District Judge March 8, 2010 13
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