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Broadcast Music, Inc. v. Northern Lights

July 27, 2009

BROADCAST MUSIC, INC.; GEORGE THOROGOOD D/B/A DEL SOUND MUSIC; UNIVERSAL-SONGS OF POLYGRAM INTERNATIONAL, INC.; JOHN BIENSTOCK D/B/A JOHNNY BIENSTOCK MUSIC; BOCHEPHUS MUSIC, INC.; HORIPRO ENTERTAINMENT GROUP, INC. D/B/A SIXTEEN STARS MUSIC; SONGS OF UNIVERSAL, INC.; SONY/ATV SONGS LLC D/B/A SONY/ATV ACUFF ROSE MUSIC; JOHN W. PATTE, SR. D/B/A YVONNE PUBLISHING CO.; SONY/ATV SONGS LLC D/B/A SONY/ATV TREE PUBLISHING; WARNER-TAMERLANE PUBLISHING CORP.; SHERYL SUZANNE CROW D/B/A OLD CROW MUSIC; JEFF TROTT D/B/A TROTTSKY MUSIC; UNICHAPPELL MUSIC, INC.; AND FORREST RICHARD BETTS D/B/A FORREST RICHARD BETTS MUSIC, PLAINTIFFS,
v.
NORTHERN LIGHTS, INC. D/B/A NORTHERN LIGHTS; AND KIP FINCK INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

DECISION AND ORDER

I. Introduction

This suit arises out of the alleged infringement of plaintiffs' copyrights through the defendants' public performance of plaintiffs' musical works without having paid required licensing fees. Currently pending is plaintiffs' motion seeking entry of a default judgment against Northern Lights, Inc. For the reasons that follow, the motion is granted.

II. Background

Plaintiff Broadcast Music, Inc. ("BMI") is a corporation which has been granted the right to license the public performance rights in the musical works alleged to have been infringed by the defendants herein. (See Dkt. No. 1.)

The remaining plaintiffs are the owners of copyrights in such musical works. Id. Defendant Northern Lights, Inc. is a corporation which runs a night club in Clifton Park, New York called Northern Lights (the "establishment"). Id. The establishment is overseen by defendant Kip Finck ("Finck"), who is an officer of Northern Lights, Inc.. Id.

From June of 2004 to June of 2006, BMI sent multiple letters to Finck notifying the defendants that their license to publicly perform plaintiffs' works had expired, and that they needed to renew the license or cease their infringing performance of such works. (See Dkt. Nos. 12:2-12:3.) BMI personnel also called the establishment frequently during this period regarding the expired license and spoke to Finck. Id. Despite these notifications, defendants failed to renew their license. Id. As such, BMI employees were dispatched to monitor the establishment on November 16 and 17, 2004 and August 4, 2006. Id. On these occasions, BMI's employees documented the ten public performances of plaintiffs' works which give rise to this action. Id.

Subsequently, on May 3, 2007, plaintiffs commenced this action under the United States Copyright Act of 1976, 17 U.S.C. § 101 et seq., seeking damages and equitable relief against Finck and Northern Lights, Inc. (See Dkt. No. 1.) Defendants were served with process on May 14, 2007. (See Dkt. Nos. 6, 7.) To date neither defendant has appeared in this action, and their time to do so has expired. See FED. R. CIV. P. 12(a).

On August 20, 2007, plaintiffs filed a Request for Entry of Default pursuant to Federal Rule of Civil Procedure 55 and Local Rule 55.1. (See Dkt. No. 8.) The Clerk of the Court entered such default on August 22, 2007. (See Dkt. No. 11.) By order entered May 20, 2008, the court entered a default judgment against Finck and severed plaintiffs' claims against Northern Lights, Inc. due to its pending Chapter 11 bankruptcy proceedings. Northern Lights, Inc.'s bankruptcy petition has since been dismissed, and plaintiffs' motion for a default judgment against Northern Lights, Inc. has been restored. Plaintiffs now move for a default judgment against Northern Lights, Inc., awarding them: 1) a permanent injunction prohibiting Northern Lights, Inc. from infringing plaintiffs' musical works, 2) $40,000 in statutory damages for the infringement, 3) attorneys' fees in the amount of $1,625 and 4) prejudgment interest at the rate set by 28 U.S.C. § 1961. (See Dkt. No. 12)

III. Discussion

A. Injunction

17 U.S.C. § 502(a) allows courts to grant "final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." "Injunctive relief is warranted where a copyright owner establishes liability and a threat of continuing violations." Warner Bros. Entertainment, Inc. v. Carsagno, No. 06 CV 2676, 2007 WL 1655666, at *5 (E.D.N.Y. June 4, 2007).

The complaint and affidavits submitted by plaintiffs establish that Northern Lights, Inc. has been repeatedly informed of the infringement of the plaintiffs' copyrights, and has failed to desist in such conduct. (See Dkt. Nos. 12:2, 12:3.) As such, the plaintiffs are entitled to a permanent injunction enjoining Northern Lights, Inc. from infringing musical compositions licensed by BMI. ...


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