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CASS COUNTY MUSIC CO. v. KHALIFA

February 1, 1996

CASS COUNTY MUSIC COMPANY, RED CLOUD MUSIC COMPANY, CROSS KEYS PUBLISHING CO., INC., SEVENTH SON MUSIC, MATTIE RUTH MUSICK, EMI APRIL MUSIC INC., GETAREALJOB MUSIC, NEW DON SONGS, NEW HAYES MUSIC, KAL MANN, JERRY LEIBER MUSIC AND MIKE STOLLER MUSIC, Plaintiffs
v.
SAYED KHALIFA d/b/a ECHO LAKE PARK, Defendants.



The opinion of the court was delivered by: MCAVOY

 Plaintiffs brought suit against defendant for five copyright infringements, seeking injunctive relief, statutory damages, and costs, including attorney's fees. The Court earlier denied defendant's motion for a jury trial. Now, the Court must resolve plaintiff's motion for summary judgment.

 I. Background

 Plaintiffs are all members of the American Society of Composers, Authors, and Publishers ("ASCAP"), to which they have granted non-exclusive rights to license non-dramatic public performances of their copyrighted musical compositions. (Hoynes Aff. P 2.) On behalf of plaintiffs and 65,000 other members, ASCAP licenses thousands of radio and television networks and stations, restaurants, nightclubs, hotels, taverns and other establishments to perform lawfully copyrighted musical compositions in the ASCAP repertory. (Id.)

 Pursuant to a long-standing oral agreement with an officer of the Amany Corporation ("Amany"), Amany pays defendant roughly $ 5000 to manage and operate Echo Lake Park ("ELP"), a 136-acre campground in Afton, New York, during the summer season. (D's Dep. at 13-19). Amany owns ELP and the land on which it is situated. (Id. at 13-14.) At all times relevant to this action, defendant was neither an officer, director, nor shareholder of Amany. (Id. at 15.) Located on the ELP grounds is a recreation hall, which includes a bar and restaurant area. (Id. at 19-20.) During the summer, entertainers perform in the bar area roughly one night per week, usually for paying members of the public. (Id. at 23, 25.)

 Defendant admits that ASCAP representatives sent him a number of letters and visited ELP to inform him that he must purchase a license in order to perform copyrighted music. He asserts that he asked each ASCAP representative, including plaintiffs' attorney, to furnish him with proof that defendant, rather than the bands who perform songs in the recreation hall, would be liable for any copyright violations stemming from public performances at ELP. Apparently, none of the ASCAP representatives provided him with this information.

 According to defendant, on July 23, 1994, he rented ELP's recreation hall to one "Bodie" for the sum of $ 100. (Id. at 27-28. ) "Bodie" apparently hired a band called "Eva Perez & The Union Railroad" ("Perez") to perform in the recreation hall that night, "on a trial basis to be hired on the following weekend for a community picnic." (Id. at 27; D's Reply, at 1). Defendant testified at his deposition that he had no agreement with Perez, did not pay Perez to perform, and did not ask Perez herself or any members of her band whether they had permission from copyright owners to perform any copyrighted musical compositions. (D's Dep. at 27, 30). He does not deny that Perez performed the five above-mentioned songs in ELP's recreation hall that evening, but claims that he neither controlled nor attended the performance. (D's Reply, at 1; D's Dep. at 26-27.) Reasoning that since he did not personally perform the songs in question, he cannot incur liability for copyright infringement, defendant argues that if anyone had a responsibility to obtain licenses, Perez did. Neither "Bodie," Perez, nor Amany is a party to this action.

 II. Discussion

 A. Summary Judgment Standard

 Under Fed. R. Civ. Pro. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).

 Summary judgment is available in suits brought by copyright owners for copyright infringement. See, e.g., Associated Music Publishers Inc. v. Debs Memorial Radio Fund, 141 F.2d 852 (2d Cir. 1942) (infringement via unauthorized public broadcast), cert. denied, 323 U.S. 766, 89 L. Ed. 613, 65 S. Ct. 120 (1944); Milene Music, Inc. v. Gotauco, 551 F. Supp. 1288 (D.R.I. 1982) (infringement via unauthorized public performance). To obtain summary judgment against an alleged infringer, a copyright owner must establish the following elements with respect to each allegedly infringed work: (1) originality and authorship of the compositions involved; (2) compliance with the formalities of the Copyright Act (the "Act"): (3) plaintiffs' ownership of the copyrights involved; (4) public performance; and (5) defendant's lack of authorization from any plaintiff or plaintiff's representative to perform the compositions publicly. Broadcast Music, Inc. v. Sonny Inv. Assocs., 865 F. Supp. 110, 113-14 (W.D.N.Y. 1994); see also Broadcast Music, Inc. v. 315 W. 44th St. Rest. Corp., 1995 U.S. Dist. LEXIS 9575, *6, 1995 WL 408399, at *2 (S.D.N.Y. July 11, 1995); Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 912 (D. Conn. 1980).

 B. Copyright Act

 Section 106(4) of the Act grants copyright owners the exclusive right to perform their copyrighted musical works publicly and to authorize such performances. Under ยง 501(a), anyone who violates a copyright owner's exclusive rights is an infringer. Although the Act nowhere defines the extent to which non-performers of copyrighted works may expose themselves to infringement liability, a long line of Second Circuit cases authorizes the imposition of vicarious liability upon those who "have the right and ability to supervise the infringing activity and also have a direct financial interest in such activities." Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, ...


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