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Broadcast Music, Inc., et al v. Haibo

March 12, 2012

BROADCAST MUSIC, INC., ET AL., PLAINTIFFS,
v.
HAIBO, INC., D/B/A YINGS WINGS THINGS AND HAIBO L. JIANG, INDIVIDUALLY DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiffs, Broadcast Music Inc., ("BMI") and several other entities holding music copyrights, bring this action against Haibo, Inc., doing business as Yings Wings Things ("Yings"), and its sole shareholder and director, Haibo L. Jiang for alleged violations of the United States Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the "Copyright Act"). Presently before this Court is Plaintiffs' motion for summary judgment. (Docket No. 21.) For the following reasons, that motion is granted.

II. BACKGROUND

A. Facts*fn1

The facts of this case are brief and mostly undisputed. BMI is a "performing rights licensing society," meaning that it licenses the right to publicly perform copyrighted musical compositions on behalf of the copyright owners of those works. (Plaintiffs' Statement, ¶ 1; Docket No. 21-3.) It grants music users -- like broadcasters, music halls, bars, and night clubs -- the right to publicly perform any of the works in BMI's repertoire, which includes songs from each of the other plaintiffs in this action. (Id., ¶ 3, 4)

According to BMI, it sent 26 letters and made 90 phone calls to Haibo Jiang informing him that he needed to retain a licensing agreement before its songs could be performed at Yings. (Id., ¶ 19.) However, Haibo Jiang, who is the sole shareholder of Haibo, Inc., which in turn owns and operates Yings, a bar and restaurant in Tonawanda, New York, ignored these entreaties and did not enter into a licensing agreement with BMI nor any of the plaintiffs. (Id., ¶ 12.)

It is undisputed that on November 14 and15, 2009, BMI sent a "logger" -- a BMI authorized agent whose duty is to record unlicenced performances -- to Yings to determine if Haibo was violating its members' copyrights. The logger, Michael Nelson, heard three songs publicly performed, "Landslide," "Travelin' Soldier," and "Play Something Country," which required a license that Haibo did not have. (Id., ¶ 15.) Plaintiffs also claim that on December 22 and 23, 2009, BMI's logger, Mitchell Greco, heard five other songs that it owned the licensing rights to: "Can't Take My Eyes Off of You," "Piece of My Heart," "Sympathy for the Devil," "Glycerine," and "Do You Realize."*fn2 (Id., ¶ 16.)

B. Procedural History

Plaintiffs filed a complaint in this Court on March 22, 2010. (Docket No. 1.) Defendants answered on April 30, 2010. (Docket No. 8.) Thereafter, Plaintiffs moved for summary judgment on March 18, 2011. (Docket No. 21.) After briefing, which concluded on May 16, 2011, this Court took the motion under consideration without oral argument.

III. DISCUSSION

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is "material" only if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A "genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. In determining whether a genuine dispute regarding a material fact exists, the evidence and the inferences drawn from the evidence "must be viewed in the light most favorable to the party opposing the motion." Adickes v. S. H. Kress & Co., 398 U.S. 144, 158--59, 90 S. Ct.1598, 1609, 26 L. Ed. 2d 142 (1970) (internal quotations and citation omitted).

"Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted). Indeed, "[i]f, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (citations omitted). The function of the court is not "to weigh ...


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