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Carbert Music, Inc. v. Great

February 8, 2007

CARBERT MUSIC, INC. AND CARLIN RECORDED MUSIC LIBRARY LTD., PLAINTIFFS,
v.
DON GREAT, DON GREAT MUSIC, TINSELTOWN MUSIC, INC. AND ANDREA GREAT, DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Plaintiffs Carbert Music Inc. and Carlin Recorded Music Library Ltd. (collectively, "plaintiffs") move for a finding of contempt and other sanctions against defendants Don Great, his wife Andrea Great, Don Great Music and Tinseltown Music, Inc. (collectively, "defendants"). The motion will be denied.

BACKGROUND

Plaintiffs brought suit against defendants in November 2005, alleging that defendants had infringed plaintiffs' copyrights in certain compositions and sound recordings created by GRH Music Co. ("GRH") between 1958 and 1972 and now owned by plaintiffs. The complaint alleged, inter alia, that the defendants had filed "fraudulent" registrations with Broadcast Music, Inc. ("BMI")*fn1 and the Copyright Office for these works.

Defendants did not answer the complaint. After lengthy settlement negotiations (which are described in detail in the parties' present submissions, but which have nothing to do with the present motion), plaintiffs sought a default judgment, which was entered on May 30, 2006. The terms of the judgment generally enjoin defendants and "all persons, firms and corporations acting in concert with them" from infringing plaintiffs' copyrights. (Order for Default Judgment, May 30, 2006 (the "Order"), ¶ 3.)

Plaintiffs assert that defendants have failed to comply with three provisions of the default judgment order. Accordingly, they seek an adjudication of contempt, the appointment of a special master, a writ of attachment, and an award of attorney's fees and costs.*fn2 Because plaintiffs offer no adequate factual basis for their suspicions that defendants are not in compliance with the Order, their motion will be denied.

DISCUSSION

I. Standards for Contempt and Sanctions

"It is well settled in this circuit that a party may be held in civil contempt for failure to comply with an order of the court if the order being enforced is clear and unambiguous, the proof of noncompliance is clear and convincing, and the defendants have not been reasonably diligent and energetic in attempting to accomplish what was ordered. It is not necessary to show that defendants disobeyed the district court's orders willfully." EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 753 F.2d 1172, 1178 (2d Cir. 1985), aff'd, 478 U.S. 421 (1986) (citations and internal quotation marks omitted). Coercive sanctions may be imposed when, in "the informed discretion of the district court," it appears that the sanction "is reasonable in relation to the facts." N.Y.S. Nat. Org. for Women v. Terry, 886 F.2d 1339, 1353 (2d Cir. 1989).

II. Withdrawal of Fraudulent Applications

The Order directs defendants and their "agents, servants, employees, attorneys, successors and assigns, and all persons, firms and corporations acting in concert with them" to "withdraw or otherwise correct all of Defendants' fraudulent registrations with BMI and the Copyright Office" for the works in question. (Order ¶ 4.) Plaintiffs claim that defendants have violated this provision of the order in three separate ways.

A. The MLM Registrations

Plaintiffs' principal complaint seems to be defendants' failure to disclaim registrations made by May-Loo Music, Inc. ("MLM"), a non-party whose relationship to defendants is not clear.*fn3 (P. Mem. 9.) MLM, however, is not named as a defendant in this action, mentioned in the Complaint, or referred to in the Order, and defendants assert that they have "no right to release or disclaim MLM's interest" in the GRH works. (Great Decl. 6.)

Plaintiffs' only evidence that the defendants have the present capacity to correct any misrepresentations or improper registrations in MLM's name is the fact that "Defendants already signed letters to [various performance rights organizations] in which Defendants disclaim all right, title and interest to the GRH Works." (P. Mem. 16 (second emphasis added).) The letters cited, which were apparently signed but never ...


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