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Buttnugget Publishing, Core Music Publishing, Big Sky Music, Dwarf Music, Mpca King of v. Radio Lake Placid

August 5, 2011

BUTTNUGGET PUBLISHING, CORE MUSIC PUBLISHING, BIG SKY MUSIC, DWARF MUSIC, MPCA KING OF SPADES, RAMS HORN MUSIC, SNIDEST MUSIC AND SPECIAL RIDER MUSIC, PLAINTIFFS,
v.
RADIO LAKE PLACID, INC., PRESCOTT HOUSE, LLC AND EDWARD S. MORGAN, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On March 21, 2011, plaintiffs filed the present copyright infringement action. See Dkt. No. 1. Defendants have failed to answer or move against the Complaint, or to otherwise appear in this action. Currently before the Court is plaintiffs' unopposed motion for a default judgment. See Dkt. No. 13.

II. BACKGROUND

Plaintiffs are music publishing companies and owners of the copyrights to the thirty-three musical compositions at issue in this case.*fn1 See Dkt. No. 1 at ¶¶ 4-11. Plaintiffs are all affiliates of SESAC, Inc. ("SESAC"), a "performing rights society" under the Copyright Act, 17 U.S.C. § 101, et seq. Plaintiffs seek injunctive relief and damages for defendants' alleged repeated and unauthorized public performances of plaintiffs' copyrighted musical compositions on defendants' owned and operated radio station. See id. at ¶ 1.

Defendant Prescott House, LLC ("Prescott") and defendant Radio Lake Placid, Inc. are engaged in the business of owning and operating commercial radio stations, including WLPWFM, in Lake Placid, New York. See id. at ¶ 13. Defendant Morgan is the president of defendant Radio Lake Placid and the sole member of defendant Prescott. Plaintiffs allege that defendant Morgan determines and/or has the ability to control the policies and practices of WLPW-FM regarding the licensing and performance of music, including the decision to forego licensing of public performance rights for the subject musical compositions. See id. at ¶ 14.

Plaintiffs allege that from January of 1990 until March 26, 2010, WLPW-FM was authorized to perform the works of any and all SESAC affiliates under a blanket license. Beginning in April 2009, however, WLPW-FM, as well as several other commonly owned stations, ceased making its monthly payments of license fees as required under the applicable SESAC license. See Dkt. No. 13-1 at ¶ 4. Plaintiffs allege that it is SESAC's and its associates' longstanding policy to terminate licenses for non-payment and to commence litigation only when all reasonable efforts to bring a radio station operator into voluntary compliance with its obligations under the copyright law have been exhausted. Plaintiffs claim that SESAC's repeated efforts to amicably resolve the issues concerning defendants' arrearage were ignored by defendants. See id. at ¶ 5. SESAC's in-house and outside counsel wrote letters to defendants urging them to enter into arrangements for paying the arrearage and informed defendants that their SESAC licenses were subject to termination for default and that, upon termination, any unauthorized performances of the musical works in the SESAC repertory could result in "claims for willful copyright infringement with damages that range up to $150,000 per song under federal statute 17 U.S.C. § 504(c)." Defendants, however, did not respond to these letters. See id. at ¶¶ 6-7.

Thereafter, on February 23, 2010, SESAC's in-house counsel notified defendants in writing that their SESAC license for WLPW-FM would be terminated effective March 26, 2010 unless the arrearage was cured by that date. Plaintiffs claim that defendants ignored this letter and, on March 26, 2010, plaintiffs terminated WLPW-FM's license. As such, plaintiffs assert that, as of that date, WLPW-FM was not authorized to perform any of the songs which are the subject of this suit publicly. See id. at ¶ 8. During the period of April 23, 2010 to April 28, 2010, subsequent to the termination of the SESAC license, SESAC monitored WLPW-FM's broadcasts and detected unauthorized performances of the thirty-three copyrighted works that are the subject of this action. See id. at ¶ 9.

Plaintiffs commenced this action on March 21, 2011 by filing a complaint against defendants for willful copyright infringement. See Dkt. No. 1. Plaintiffs served the Summons and Complaint on defendants on April 2, 2011, making their responses due on April 25, 2011.

See Dkt. No. 13-2 at ¶ 4. To date, none of the defendants filed an answer or motion in response to the Complaint.

On April 29, 2011, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, plaintiffs requested an entry of default against all defendants. See Dkt. No. 11. On May 2, 2011, the Clerk of the Court entered a default against defendants. See Dkt. No. 12. On June 28, 2011, plaintiffs filed the present motion seeking a default judgment against defendants pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. See Dkt. No. 13. Defendants failed to respond to the motion.

III. DISCUSSION

A. Standing

Although not raised by the parties, the Court, in the interests of clarity and completeness, first addresses whether plaintiffs have standing to bring this action.

"The Copyright Act authorizes only two types of claimants to sue for copyright infringement: (1) owners of copyrights, and (2) persona who have been granted exclusive licenses by owners of copyrights." Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27, 32 (2d Cir. 1982) (citing 3 Nimmer on Copyright ยง 12.02 at 12--25 (1982)). A non-exclusive licensee does not have standing to commence a copyright infringement action. See Bertolino v. Italian Line, 414 F. Supp. 279, 284 (S.D.N.Y. 1976) (holding that, "[i]n ...


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