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Broad. Music, Inc. v. Wexford Inr LLC

United States District Court, N.D. New York

September 15, 2014

BROAD. MUSIC, INC.; UNIV.-SONGS OF POLYGRAM INT'L, INC.; ADULT MUSIC; SCREEN GEMS-EMI MUSIC, INC.; WARNER-TAMERLANE PUBL'G CORP.; ELEKSYLUM MUSIC INC.; NO SURRENDER MUSIC; WELSH WITCH MUSIC; EMI VIRGIN SONGS, INC.; CORAL REEFER MUSIC, Plaintiff,
v.
WEXFORD INR LLC d/b/a THE IRISH TIMES PUB & REST.; and NIALL ROCHE, individually, Defendants.

HARRIS BEACH PLLC NEAL L. SLIFKIN, ESQ., Pittsford, New York, Counsel for Plaintiffs.

THE MORRISON LAW OFFICES, PC, LAWRENCE MORRISON, ESQ., New York, New York, Counsel for Defendants.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this copyright infringement action filed by the ten above-captioned entities ("Plaintiffs") against Wexford INR LLC and Niall Roche ("Defendants") pursuant to 17 U.S.C. § 101 et seq., is Plaintiffs' motion for summary judgment. (Dkt. No. 32.) For the reasons set forth below, Plaintiffs' motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiffs' Claims

Generally, liberally construed, Plaintiffs' Complaint alleges that, on or about June 2, 2012, at The Irish Times Pub & Restaurant in Saratoga Springs, New York, Defendants violated the following rights in the following manner: (1) the rights of Plaintiff Universal-Songs of Polygram International, Inc., under 17 U.S.C. § 101 et seq., by publically performing, without authorization, the musical composition Brown Eyed Girl, written by Van Morrison; (2) the rights of Plaintiff Adult Music under 17 U.S.C. § 101 et seq., by publically performing, without authorization, the musical composition I Want You to Want Me, written by Rick Nielsen; (3) the rights of Plaintiff Eleksylum Music, Inc., under 17 U.S.C. § 101 et seq., by publically performing, without authorization, the musical composition Keep Your Hands to Yourself, written by Dan Baird; (4) the rights of Plaintiff Welsh Witch Music, under 17 U.S.C. § 101 et seq., by publically performing, without authorization, the musical composition Landslide, written by Stevie Nicks; (5) the rights of Plaintiff EMI Longitude Music under 17 U.S.C. § 101 et seq., by publically performing, without authorization, the musical composition Louie Louie, written by Richard Berry; and (6) the rights of Plaintiff Coral Reefer Music under 17 U.S.C. § 101 et seq., by publically performing, without authorization, the musical composition Margaritaville, written by James William Buffett a/k/a Jimmy Buffett. ( See generally Dkt. No. 1 [Plfs.' Compl.].)

Familiarity with the factual allegations supporting these claims is assumed in this Decision and Order, which is intended primarily for the review of the parties. ( Id. )

B. Undisputed Material Facts

Generally, the following facts were asserted and supported by Plaintiffs in their Local Rule 7.1 Statement of Undisputed Material Facts, and either expressly admitted or denied without an accurate supporting record citation by Defendants in their Local Rule 7.1 Response. ( Compare Dkt. No. 32, Attach. 1 [Plfs.' Rule 7.1 Statement] with Dkt. No. 37 [Defs.' Opp'n Papers].)

1. Plaintiff Broadcast Music, Inc. ("BMI") is a not-for-profit performing rights society that licenses the right to publicly perform copyrighted musical compositions and works on behalf of the copyright owners of those works. (Dkt. No. 33, at 1-2 [Lloyd Decl. at ¶¶ 3-4].)

2. BMI acquires non-exclusive public performance rights by agreement with copyright owners, including publishing companies and independent composers. (Dkt. No. 33, at 1-2 [Lloyd Decl. at ¶ 4].)

3. The other Plaintiffs in this suit are the copyright owners of the six musical compositions that are the subject of this lawsuit. (Dkt. No. 33, at 2 [Lloyd Decl. at ¶ 5].)

4. The other Plaintiffs have granted BMI the right to maintain actions for infringement of the public performance rights in the musical compositions that are the subject of this lawsuit and to seek damages for such infringement. (Dkt. No. 33, at 2 [Lloyd Decl. ¶¶ 5-8].)

5. Defendant Wexford INR, LLC ("Wexford INR") owns 100% of the Irish Times Pub & Restaurant located at 14 Phila Street, Saratoga Springs, NY 12866 (the "Irish Times"). (Dkt. No. 32, Attach. 2, at 107 [Plfs.' Ex. E at No. 3].)

6. Defendant Niall Roche ("Mr. Roche") owns 100% of Wexford INR, and is the general manager of the Irish Times. (Dkt. No. 32, Attach. 2, at 106-07 [Plfs.' Ex. E at Nos. 1-4].)

7. Wexford INR and Mr. Roche ("Defendants") thus own and operate the Irish Times; and Mr. Roche has received approximately three hundred forty-eight thousand dollars ($348, 000.00) in gross revenue from the Irish Times from 2009 to 2012. (Dkt. No. 32, Attach. 2, at 106-07 [Plfs.' Ex. E at Nos. 1-4]; Dkt. No. 37, at 1 [Defs.' Opp'n Papers, ¶¶ 1, 2].)

8. The Irish Times features performances of live and recorded music. (Dkt. No. 34, at 1-2, 3 [Stevens Decl. at ¶¶ 4, 11-12].)

9. Between February 2010 and June 2012, BMI mailed multiple letters to Defendants informing them of the need to obtain permission for public performances of copyrighted music, and offered to enter into a license agreement with Defendants. (Dkt. No. 34, at 2 [Stevens Decl. at ¶ 6].)

10. Defendants did not enter into a license agreement with BMI, and did not have a license to perform any of the six songs identified in Exhibit A to the Complaint. (Dkt. No. 34, at 3 [Stevens Decl. at ¶ 10].)

11. On January 11, 2011, BMI instructed Defendants to cease public performances of music licensed by BMI. (Dkt. No. 34, at 2 [Stevens Decl. ¶ 7].)

12. Irish Times continued to feature public performances of BMI-licensed music after a BMI investigator documented the performances of songs owned by Plaintiff on June 2, 2012. (Dkt. No. 34, at 3 [Stevens Decl. ¶ 11].)

13. BMI's investigator generated an audio recording and written report of the songs played at the Irish Times on June 2, 2012. (Dkt. No. 34, at 3 [Stevens Decl. ¶ 11].)

14. On June 2, 2012, at least "Brown Eyed Girl, " "I Want You To Want Me, " "Keep Your Hands To Yourself, " "Louie Louie, " "Margaritaville, " and "Landslide" were performed at the Irish Times. (Dkt. No. 34, at 3 [Stevens Decl. ¶ ¶ 11, 12].)

15. Each of these compositions is registered with the U.S. Copyright Office to one of the named Plaintiffs. (Dkt. No. 33, at 2-3 [Lloyd Decl.¶¶ 5, 7-9]; Dkt. No. 33, at 17-198 [Plfs.' Ex. B].)

16. BMI has been granted by the other Plaintiffs the right to maintain actions for infringement of the public performance rights in the musical compositions that are the subject of this lawsuit and to seek damages for such infringement. (Dkt. No. 33, at 2 [Lloyd Decl.¶ 6].)

17. Plaintiffs served their First Set of Interrogatories on Defendants, their First Request for Production of Documents on Defendants, and their First Requests for Admissions to Defendants on Defendants by First Class Mail, postage prepaid on February 7, 2013. (Dkt. No. 32, Attach. 2, at 1-2 [Slifkin Decl. ¶¶ 2-5].)

18. Plaintiffs' First Requests for Admissions states that a response was required within thirty (30) days. (Dkt. No. 32, Attach. 2, at 2 [Slifkin Decl. ¶ 6].)

19. No response from Defendants to Plaintiffs' First Requests for Admissions had been received by Plaintiffs as of November 8, 2013. (Dkt. No. ...


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