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Broadcast Music, Inc. v. Pamdh Enterprises, Inc.

United States District Court, S.D. New York

June 19, 2014

BROADCAST MUSIC, INC.; NU SHOOZ ORCHESTRA, LLC; MJ PUBLISHING TRUST d/b/a MIJAC MUSIC; SONGS OF UNIVERSAL, INC., Plaintiffs,
v.
PAMDH ENTERPRISES, INC. d/b/a KATRA; DAVID CASEY; and SHERI LYNN WILSON, each individually, Defendants.

OPINION & ORDER

KIMBA M. WOOD, District Judge.

Plaintiffs Broadcast Music, Inc. ("BMI"), Nu Shooz Orchestra, LLC ("Nu Shooz"), MJ Publishing Trust d/b/a Mijac Music ("Mijac Music"), and Songs of Universal, Inc. ("Songs of Universal") (collectively, "Plaintiffs") brought this suit against defendants PAMDH Enterprises, Inc. d/b/a Katra, David Casey, and Sheri Lynn Wilson (collectively, "Defendants") for copyright infringement. Defendants have failed to answer or otherwise appear in this action. Plaintiffs now move for default judgment against Defendants, seeking damages, injunctive relief, and costs.

For the reasons stated below, the Court GRANTS Plaintiffs' motion and enters default judgment against Defendants. The Court awards Plaintiffs damages and costs, but not injunctive relief.

I. FACTUAL BACKGROUND

The following summary is drawn from Plaintiffs' Complaint, [Dkt. No. 1], and the exhibits and declarations attached to Plaintiffs' motion for default judgment, [Dkt. No. 7].

BMI is a non-profit corporation that acquires the non-exclusive public performance rights of musical works from copyright owners and then licenses the public performance of such works on their behalf. (Compl. ¶ 3; Lloyd Decl. ¶¶ 2-3 [Dkt. No. 8]); see also 17 U.S.C. § 101 (listing BMI as an example of a "performing rights society, " which "is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works"). BMI grants to music users the right to publicly perform any of the approximately 7.5 million copyrighted musical works in its repertoire by means of a blanket license agreement. (Compl. ¶ 3; Lloyd Decl. ¶¶ 2, 5). The Complaint in this case alleges copyright infringement of three musical works that are licensed by BMI and owned by the other plaintiffs-Nu Shooz, Mijac Music, and Songs of Universal. (Compl. ¶¶ 3-7; Lloyd Decl. ¶ 4).

Defendants own and operate Katra, an establishment located at 217 Bowery in New York City. (Compl. ¶¶ 8-14). BMI learned that Katra was offering musical entertainment without a license from BMI or permission from the copyright owners whose music was being performed. (Stevens Decl. ¶ 3 [Dkt. No. 10]). Between August 2011 and August 2012, BMI repeatedly informed Defendants of the need to obtain permission for public performances of copyrighted music. (Stevens Decl. ¶¶ 3, 5-9). BMI sent twenty-three letters to Katra, telephoned Katra on thirty-four occasions, and visited in-person three times. (Stevens Decl. ¶ 9, Ex. B). Defendants, however, failed to enter into a license agreement with BMI and continued to offer unauthorized public performances of BMI-licensed music. (Stevens Decl. ¶ 10). BMI sent an investigator to visit Katra on June 8 and June 22, 2012, and to make audio recordings and written reports of music being publicly performed. (Stevens Decl. ¶ 11).

On June 8, 2012, Defendants caused to be publicly performed at Katra the songs "I Can't Wait, " for which Nu Shooz is the copyright owner, and "Cutie Pie, " for which Songs of Universal is the copyright owner. (Compl. ¶ 21, Schedule; Stevens Decl., Ex. A). On June 22, 2012, Defendants caused to be publicly performed at Katra the song "Wanna Be Startin' Somethin', '" for which Mijac Music is the copyright owner.[1] (Compl. ¶ 21, Schedule; Stevens Decl., Ex. A). BMI was (and still is) the licensor of the public performance rights of these three musical works, (Compl. ¶ 20), and the other plaintiffs in this case have granted BMI the right to maintain actions for infringement of the public performance rights in their musical works, (Lloyd Decl. ¶ 5). Plaintiffs state that Defendants continue to publicly perform music licensed by BMI at Katra and that BMI has not received an executed license from Defendants. (Compl. ¶ 22; Stevens Decl. ¶ 16).

II. DISCUSSION

Defendants were served with a copy of the summons and complaint in this case in early May 2013. ( See Affs. of Service [Dkt. Nos. 3-5]). To date, Defendants have failed to answer or otherwise appear in this action. Plaintiffs obtained a certificate of default against Defendants, [Dkt. No. 13], and Plaintiffs now seek a default judgment. Plaintiffs' motion for default judgment was served on Defendants by mail. ( See Certificate of Service, attached to Mot. for Default Judgment).

A. Liability

"[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability." Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). In the event of a default, a court is thus "required to accept all of the [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor." Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). A district court, however, "need not agree that the alleged facts constitute a valid cause of action, " Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981); rather, the Second Circuit has "suggested that, prior to entering default judgment, a district court is required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law, '" City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (quoting Finkel, 577 F.3d at 84). "Accordingly, the Court must determine whether the well pleaded allegations in the Complaint, admitted by Defendants on this motion, are sufficient to establish liability for the claimed causes of action." Rolex Watch U.S.A., Inc. v. Rolex Deli Corp., 11-CV-9321, 2012 WL 5177517, at *1 (S.D.N.Y. Oct. 18, 2012) (Jones, J.).

In order to demonstrate copyright infringement, a plaintiff must show "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991); accord Scholz Design, Inc. v. Sard Custom Homes, LLC, 691 F.3d 182, 186 (2d Cir. 2012); see also 17 U.S.C. § 106(4) (providing that a copyright owner of a musical work has the "exclusive rights" to "perform the copyrighted work publicly"); 17 U.S.C. § 501(a) (stating that "[a]nyone who violates any of the exclusive rights of the copyright owner... is an infringer of the copyright"); EMI April Music, Inc. v. White, 618 F.Supp.2d 497, 504 (E.D. Va. 2009) ("[O]ne who publicly performs copyrighted music without permission from the copyright owner thereby infringes the copyright.").

Plaintiffs have sufficiently alleged that Defendants committed copyright infringement, and liability is established by Defendants' default. Plaintiffs state that they are the copyright owners and authorized licensor of the public performance rights of the musical works at issue, ( see Compl. ¶¶ 20-21, Schedule (listing registration numbers)), and that Defendants publicly performed the musical works without a license or permission, ( id. ). Plaintiffs' investigator visited Katra on June 8 and June 22, 2012, and made audio recordings that reveal that Defendants performed the copyrighted musical works. (Stevens Decl. ¶¶ 11-12, Ex. A). Accordingly, the Court finds liability on the part of Defendants in this default action.

B. Statutory Damages

Unlike with allegations concerning liability, a party's default "is not considered an admission of damages.'" Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (quoting Greyhound Exhibitgroup, 973 F.2d at 158). On a default judgment motion, "[t]here must be an evidentiary basis for the damages sought by plaintiff, and a district court may determine there is sufficient ...


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