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June 2, 1994

BROADCAST MUSIC, INC., et al., Plaintiffs,

The opinion of the court was delivered by: CAROLE E. HECKMAN

 This case has been referred to the undersigned by Hon. Richard J. Arcara pursuant to 28 U.S.C. § 636(b)(1) for all pretrial matters and to hear and report on dispositive motions. Plaintiffs have moved for summary judgment pursuant for Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, it is recommended that plaintiffs' motion be granted.


 Plaintiff Broadcast Music, Inc. ("BMI") is a "performing rights society" expressly recognized in § 116 of the Copyright Act as "an association or corporation that licenses the public performance of nondramatic musical works on behalf of copyright owners . . .." 17 U.S.C. § 116(e)(3). The other plaintiffs are the owners of the copyrights in thirteen musical compositions which the complaint alleges were publicly performed without a licensing agreement, in violation of the Copyright Act. The public performances occurred on May 20, 1992 and June 12, 1992 at Merlin's, a bar owned by defendants and located at 727 Elmwood Avenue, Buffalo, New York (Declaration of Robert Avino, Item 11).

 Between January, 1992 and July, 1992, BMI sent defendants several letters advising them of the Copyright Act's licensing requirements, as well as the statutory damages for public performance of copyrighted music without permission of the composers and publishers (Declaration of Lawrence E. Stevens, Item 10, Exs. A-E). In addition, between January and April of 1992, BMI offered to grant defendants a license for public performance of musical compositions at Merlin's, and forwarded informational brochures, license fee schedules and license agreement forms for this purpose (id.). Defendants did not respond to these offers and notices, and did not enter a licensing agreement with BMI. On April 8, 1992, BMI sent defendants a letter instructing them to cease public performances of BMI-licensed music (id., Ex. C).

 On May 20, 1992 and June 12, 1992, BMI investigator Robert Avino was present at Merlin's and made written reports of the musical compositions performed by live bands on those dates (Item 11). BMI claims non-exclusive public performance rights to thirteen of the compositions performed at Merlin's on those dates, through "blanket licensing agreements" granted by the owners of the copyrights to those songs (see Declaration of Judith M. Saffer, Item 7, and copyright registration certificates attached thereto).

 Plaintiffs commenced this action for copyright infringement on December 7, 1992 (Item 1). Defendants answered the complaint on or about May 10, 1993 (Item 4). Plaintiffs filed their motion for summary judgment on January 19, 1994. Defendants did not file a response to this motion, nor did defendants' counsel oppose the motion at oral argument before the undersigned on May 10, 1994.


 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, U.S. , 112 S. Ct. 152 (1991).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, therefore, the nonmoving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). As provided in Rule 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 Fed.R.Civ.P. 56(e) (emphasis added).

 The essential elements of a copyright infringement claim include:

(1) the originality and authorship of the compositions involved; (2) compliance with all formalities required to secure a copyright under Title 17, United States Code; (3) that plaintiffs are the proprietors of the compositions involved in this action; (4) that the compositions were performed publicly for profit [at the location alleged]; and (5) that the defendants had not ...

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