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Gladys Music v. Bilbat Radio

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


October 15, 2007

GLADYS MUSIC, UNIVERSAL-MCA MUSIC PUBLISHING, A DIVISION OF UNIVERSAL STUDIOS, INC., JERRY LEIBER MUSIC, MIKE STOLLER MUSIC, QUARTET MUSIC, RANGE ROAD MUSIC, INC., PANTHER MUSIC CORP., GONE GATOR MUSIC, VAN HALEN MUSIC, EMI APRIL MUSIC INC., SOMERSET SONGS PUBLISHING, INC., INDIAN LOVE BRIDE MUSIC, UNIVERSAL-POLYGRAM INTERNATIONAL PUBLISHING, INC., BON JOVI PUBLISHING, FAMOUS MUSIC LLC, SUCCESSOR-IN-INTEREST TO FAMOUS MUSIC CORPORATION, STUCK IN THE THROAT MUSIC, CONTROVERSY MUSIC, PURPLE RABBIT MUSIC AND GNAT BOOTY MUSIC, PLAINTIFFS,
v.
BILBAT RADIO, INC. AND WILLIAM H. BERRY, JR., DEFENDANTS.

The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiffs Gladys Music, Inc., et al. ("Plaintiffs") brought this action against Defendants, Bilbat Radio, Inc. and William H. Berry, Jr. ("Defendants") for violations of Federal Copyright Law under Title 17 of the United States Code, and pursuant to 28 U.S.C. § 1338(a). See Complaint (Dkt. No. 1)

The Defendants have failed to appear, answer or otherwise plead with respect to the Complaint in this action and their time to do so has expired. On April 4, 2007, Plaintiffs filed a Request for Entry of Default against Defendants, pursuant to Federal Rule of Civil Procedure 55(a) and the Western District of New York's Local Rule 55.1. See Request for Entry of Default (Dkt. No. 5); Fed. R. Civ. P. 55(a); W.D.N.Y. Loc. R. 55.1. Plaintiffs' request for an Entry of Default was entered by the Clerk of the Court on April 5, 2007. See Clerk's Entry of Default (Dkt. No. 6). On April 26, 2007, Plaintiffs filed a Motion for Entry of Default Judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. See Motion for Default Jdmt. (Dkt. No. 9); Fed. R. Civ. P. 55(b).

DISCUSSION

Plaintiffs request the entry of default judgment granting them the relief sought in the complaint, including statutory damages, a permanent injunction, and costs, including reasonable attorney's fees.

Pursuant to Fed. R. Civ. P. 55, district courts may grant default judgment against a party that has failed to plead or otherwise defend. See Enron Oil Corp. v. Masonori Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Initially, a party moving for default judgment must obtain an Entry of Default from the Clerk of the Court pursuant to Fed. R. Civ. P. 55(a). Thereafter, if the "plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be certain," the moving party can seek a default judgment from the Clerk of the Court. In all other situations, the plaintiff must seek a default judgment from the Court. See Fed. R. Civ. P. 55(b). Plaintiffs have obtained an Entry of Default from the Clerk of the Court and now seeks default judgment from the Court pursuant to Rule 55(b).

Default judgments may be granted to plaintiffs asserting copyright infringement claims where the defendants have failed to answer or move against the complaint. See Broad. Music, Inc. v. R Bar of Manhattan, Inc., 919 F.Supp. 656, 659 (S.D.N.Y. 1996). As a tort action, an action for copyright infringement imposes joint and several liability on all participants of the tortious activity. See Sygma Photo News, Inc. v. High Society Magazine, Inc., 596 F.Supp. 28, 33 (S.D.N.Y. 1984). Thus, an individual may be held liable for copyright infringement if he has the right and ability to supervise the infringing activity and a direct financial interest in such activity. See Barnaby Music Corp. v. Catoctin Broad. Corp., 1988 WL 84169, at *2 (W.D.N.Y. 1988).

Following review of the Record and the submissions of the Plaintiffs, as well as the relevant statutes and case law, and after considering all of the relevant factors to be weighed in this matter, this Court finds that the amount requested by Plaintiffs are due to Plaintiffs in this matter deriving from Defendants' repeated violations of copyright law: statutory damages/penalties of three thousand dollars ($3,000) per work infringed, for a total of forty-eight thousand dollars ($48,000) (pursuant to 17 U.S.C. § 504), as well as attorney's fees and costs (pursuant to 17 U.S.C. § 505) totaling $2,960.50, with the Court finding that the fees requested fall within the realm of reasonable fees charged within this District for the work of attorneys of similar skill and experience.*fn1 The Court, thus, grants Plaintiffs' Motion for default judgment against Defendants.

The Court further finds that Plaintiffs have met the requirements for showing that a permanent injunction is proper in this case. The Copyright Act of 1976 provides that courts may grant injunctive relief to prevent or restrain copyright infringements. See 17 U.S.C. § 502(a).*fn2 A permanent injunction is appropriate when infringement by unauthorized public performances has been proven. See Broad. Music, Inc. v. Sonny Inc. Assoc., Inc., 865 F.Supp. 110, 114 (W.D.N.Y. 1994); Barnaby Music, 1988 WL 84169 at *3. (Copyright owners are entitled to the issuance of a permanent injunction to protect their works from repeated infringement "when liability has been established and there is a threat of continuing violation") (citations omitted). Here, the uncontroverted allegations in Plaintiffs' Complaint, as supplemented by the affidavits and exhibits to the Plaintiffs' Motion for Default Judgment, establish that Defendants infringed Plaintiffs' copyrights despite knowledge of those copyrights and continue to have copyrighted music performed at the present time. Therefore, the Court hereby orders that Defendants are permanently enjoined (pursuant to 17 U.S.C. § 502) from any further unauthorized or unlicensed performance of any of the works in the repertory of Plaintiffs or the American Society of Composers, Authors and Publishers ("ASCAP")*fn3 (with whom Plaintiffs are associated).

CONCLUSION

Based upon Plaintiffs' Application For Default Judgment together with other relief, and good cause appearing therefore, it is hereby:

ORDERED, that Plaintiffs' Motion for Default Judgment is GRANTED . The Clerk shall enter Default Judgment against Defendants, jointly and severally, in the amount of Forty-Eight Thousand Dollars ($48,000), representing statutory damages of three thousand dollars ($3,000) per work infringed; and it is further

ORDERED, that Defendants shall also pay Plaintiffs' reasonable attorney's fees and costs herein in the amount of Two Thousand Nine Hundred Sixty Dollars and Fifty Cents ($2,960.50) and shall have judgment therefore; and it is further

ORDERED, that the Defendants are Permanently Enjoined from any further unauthorized or unlicensed performance of any of the works in the repertory of Plaintiffs or the ASCAP; and it is further

ORDERED, that the Clerk shall serve a copy of this Order on all parties.

ALL OF THE ABOVE IS SO ORDERED.

Rochester, New York


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