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WB Music Corp. v. Lark 301

July 24, 2007

WB MUSIC CORP., UNIVERSAL-POLYGRAM INTERNATIONAL PUBLISHING, INC., DUBOSE & DOROTHY HEYWARD MEMORIAL FUND PUBLISHING, GEORGE GERSHWIN MUSIC AND IRA GERSHWIN MUSIC, PLAINTIFFS,
v.
LARK 301, INC. AND JOHN DEJOHN, DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Presently before the Court is plaintiffs' motion (Dkt. No. 13) for an order granting default judgment against defendants Lark 301, Inc., and John DeJohn in this action for copyright infringement based on defendants' public performances of copyrighted musical compositions, in violation of the Copyright Act, 17 U.S.C. § 101 et seq. Plaintiffs seek an award of statutory damages pursuant to 17 U.S.C. § 504(c)(1), an award of attorney fees and costs, and a permanent injunction prohibiting further infringing performances.

THE COMPLAINT

According to the complaint, plaintiffs own the exclusive copyrights for the following musical compositions: "Someone to Watch Over Me"; "The Song is You"; and "Summertime." Defendant Lark 301, Inc., owns and operates Justin's, a place of business for public entertainment, accommodation, amusement and refreshment, in Albany, New York. Defendant John DeJohn is the principal of defendant Lark 301, Inc., with primary responsibility for the control, management and operation of Justin's. The complaint alleges that defendants infringed the copyright in each composition by giving unauthorized public performances of the above named musical compositions at Justin's.

The complaint claims that defendants have not sought or obtained a license agreement to give public performances of these compositions from plaintiffs or the American Society of Composers, Authors and Publishers ("ASCAP"), a performing rights licensing organization of which plaintiffs are members. Further, although ASCAP representatives sent numerous letters and made other contacts to inform defendants of plaintiffs' rights under the Copyright Act, defendants have performed and continue to perform copyrighted music without permission during the hours that defendants' establishment is open to the public for business and the presentation of musical entertainment. Thus, plaintiffs allege, defendants knowingly and intentionally violated plaintiffs' rights under the Copyright Act.

Plaintiffs seek: (1) a permanent injunction enjoining plaintiffs from publicly performing or allowing the public performance of the compositions on defendants' premises; (2) statutory damages pursuant to 17 U.S.C. § 504(c)(1); and (3) an award of costs and attorneys' fees.

DISCUSSION

Procedure on default Rule 55 of the Federal Rules of Civil Procedure sets forth the procedure for obtaining a default judgment where a defendant has failed to plead or otherwise defend an action.Under Rule 55(b)(2) and Local Rule 55.2, to obtain default judgment, a plaintiff must: (1) properly serve defendant with a summons and complaint (to which no response has been made); (2) obtain a clerk's entry of default, see Fed. R. Civ. P. 55(a); N.Y.N.D.L.R. 55.1; and (3) provide an affidavit setting forth the facts required by L.R. 55.2(a), including an affidavit showing that defendant is not an infant or incompetent or in the military service. See Fed. R. Civ. P. 55(b)(2); N.Y.N.D.L.R. 55.2.

Plaintiffs filed the complaint on October 11, 2006, and served both defendants on October 20, 2006. Defendants have not answered or otherwise appeared in this action. On November 20, 2006, plaintiffs obtained a clerk's entry of default. Plaintiffs have submitted an affidavit that the individual defendant is not in the military service, nor is he an infant or incompetent. The present motion has been served on defendants, and defendants have interposed no opposition. Plaintiffs have fulfilled the procedural prerequisites; accordingly, the Court turns to address liability and damages.

Liability

"A party's default is deemed to constitute a concession of all well-pleaded allegations of liability[.]" Greyhound Exhibitgroup v. E.L.U.L. Realty, 973 F.2d 155, 158 (2d Cir. 1992). To establish copyright infringement, a plaintiff must prove: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Pub'ls, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citation omitted); see Rogers v. Koons, 960 F.2d 301, 306 (2d Cir.) ("To establish an infringement of a copyright, a plaintiff must show both ownership of a copyright and that defendant copied the protected material without authorization.").

The facts in the complaint, which are deemed admitted, are that plaintiffs are the owners of copyrights in the three musical compositions at issue; that defendant Lark 301, Inc. owns and operates Justin's, a place of public entertainment; that defendant John DeJohn as principal of Lark 301, Inc. is primarily responsible for the control, management and operation of Justin's; that defendants have been given repeated notification of their obligations under the copyright laws; that without plaintiffs' permission or consent, unlicensed public performances of the compositions were given at Justin's for the entertainment and amusement of its patrons; and that defendants had the authority to supervise the infringing activity and benefitted from the infringing performances. Plaintiffs submit the report of Lawrence DeMarco, an independent investigator, stating that while he was in defendants' ...


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