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Broadcast Music, Inc. et al v. Dfk Entertainment

March 15, 2012


The opinion of the court was delivered by: Gary L. Sharpe Chief Judge



I. Introduction

Plaintiffs Broadcast Music, Inc., Warner-Tamerlane Publishing Corp., Amazement Music, Hip City Music Inc., Hifrost Publishing, Wide Grooves Music, Gliro Music Inc. and Songs of Universal, Inc. (collectively "BMI") commenced this action under the Copyright Act of 1976,*fn1 alleging defendants DFK Entertainment, LLC and Dominic Karl (collectively "DFK") committed five acts of willful copyright infringement. (See Compl. ¶¶ 17-24, Dkt. No. 1.) Pending is BMI's motion for summary judgment and DFK's cross-motion for partial summary judgment. (See Dkt. Nos. 24, 25.) For the reasons that follow, BMI's motion is granted and DFK's cross-motion is denied.

II. Background*fn2

Under its agreements with various music publishing companies and composers, BMI licences "the right to publicly perform copyrighted musical compositions on behalf of the copyright owners of those works." (See BMI's Statement of Material Facts (SMF) ¶¶ 1-2, Dkt. No. 24, Attach. 8.) In turn, BMI sells "blanket licence agreements," which entitle music users, such as DFK, to "publicly perform any of the works in BMI's repertoire."

(See id. ¶ 4.) Albeit "non-exclusive," BMI acquired public performance rights to "Ain't No Stoppin' Us Now," "Before I Let Go," "Poison," "Rebirth of Slick Cool Like Dat" and "Mona Lisa" (collectively "the Works"),*fn3 each of which was performed without BMI's authorization at DFK's nightclub, Sneaky Pete's. (See id. ¶¶ 3, 6, 18-22.)

Located on Central Avenue in Albany, New York,*fn4 Sneaky Pete's held upwards of 600 people, and charged between $10 and $40 for admission. (See Dkt. 24, Attach. 7 at 12-14;DFK's SMF ¶ 24, Dkt. No. 25, Attach. 3.) From September 19, 2007 to February 6, 2011, Sneaky Pete's was owned and operated by DFK Entertainment LLC, through its sole member and owner, Dominic Karl. (See BMI's SMF ¶¶ 6-8.) Although he was only present 70% of the time it was open, Karl was the club's general manager, and as such, was authorized to "control the activities at Sneaky Pete's." (See id. ¶¶ 9, 12, 14.) For example, after Karl was served in this case, he "posted a notice that all disc jockeys should refrain from playing songs that are licensed only through BMI." (DFK's SMF ¶ 59.)

With respect to the infringements at issue, DFK concedes*fn5 that the Works were publicly performed at Sneaky Pete's without BMI's authorization on either March 28-29, 2009 or July 24-25, 2010. (See id. ¶¶ 18-22.) While DFK believed its ASCAP license, standing alone, was sufficient,*fn6 (see id. ¶¶ 47, 50), BMI, prior to commencing the investigation, placed seventy-nine telephone calls and sent sixteen letters to Sneaky Pete's regarding the public performance of its music. (See id. ¶¶ 25-26, 47-50.) Though six letters were sent directly to Sneaky Pete's-as opposed to DFK's preferred mailing address-Karl admits that he spoke with a BMI representative "[o]n at least one occasion." (Id. ¶ 26.) In total, BMI claims it was deprived of $25,674 in licensing fees for the period beginning December 2007 and ending February 2011. (See id. ¶ 28.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, No. 1:09-cv-652, 2011 WL 5599571, at *4 (N.D.N.Y. Nov. 17, 2011).

IV. Discussion

BMI argues it is entitled to summary judgment because it has provided uncontroverted evidence which proves DFK infringed the copyrights in question. (See Dkt. No. 24, Attach. 9 at 6-8.) While not admitting that BMI proved its case, DFK's "primary defense . . . is the unreasonableness of [BMI's] damages demands." (Dkt. No. 25, Attach. 1 at 4.) Thus, before addressing the issue of damages, the court discusses the sufficiency of BMI's proof with respect to its infringement claim.

A. Prima Facie Case of Infringement

"Copyright infringement is established when the owner of a valid copyright demonstrates unauthorized copying." Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997); see 17 U.S.C. § 501(a). In the context of musical works, "copying" means the right "to perform the copyrighted work publicly." 17 U.S.C. § 106(4). Thus, establishing a prima facie case of copyright infringement in musical works hinges on proof of the following:

(1) the originality and authorship of the compositions involved; (2) compliance with all formalities required to secure a copyright under Title 17, United States Code; (3) that plaintiffs are the proprietors of the copyrights of the compositions involved in this action; (4) that the compositions were performed publicly for profit (by the defendants); and (5) that the defendants had ...

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