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Broadcast Music, Inc. v. It's Amore Corp.

June 30, 2009

BROADCAST MUSIC, INC., HARRICK MUSIC, INC., VIRGIN SONGS, INC., D/B/A LONGITUDE MUSIC, STONE DIAMOND MUSIC CORPORATION, MICHAEL JOE JACKSON, D/B/A MIJAC MUSIC, DIMENSIONAL MUSIC PUBLISHING, LLC, D/B/A SONGS OF THE KNOLL, LOWERY MUSIC COMPANY, INC., WARNER-TAMERLANE PUBLISHING CORP., CAN'T STOP MUSIC, A DIVISION OF CAN'T STOP PRODUCTIONS, INC., JAMES W. BUFFETT, D/B/A CORAL REEFER MUSIC, FOURTEENTH HOUR MUSIC, INC., SPRINGTIME MUSIC, INC., CHRYSALIS STANDARDS, INC., SONY/ATV SONGS, LLC, D/B/A SONY/ ATV ACUFF ROSE MUSIC, ROY KELTON ORBISON, JR., D/B/A R-KEY DARKUS PUBLISHING, ALEXANDER ORBISON, D/B/A ORBI- LEE PUBLISHING, BARBARA ORBISON AS TRUSTEE, D/B/A BARBARA ORBISON MUSIC COMPANY, MUSCLE SHOALS SOUND PUBLISHING CO., INC., RANDOR MUSIC INTERNATIONAL, INC., D/B/A IRVING MUSIC, FORT KNOX MUSIC, INC., TRIO MUSIC CO., INC., G. LOVE, A/K/A GARRET DUTTON, D/B/A CHICKEN PLATTERS, PLAINTIFFS
v.
IT'S AMORE CORP., T & M DRAM CORP., ALEXANDER J. TARAPCHAK, AND VINCE MARINARO, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is plaintiffs' motion for summary judgment (Doc. 23). Having been briefed and argued, the matter is ripe for disposition.

Background

This case arises out of the performance of copyrighted material at Amore Italian Ristorante in South Abington Township, Pennsylvania. Plaintiffs contend that performances at the restaurant violated their rights under the Copyright Act ("the Act"), 17 U.S.C. § 106(4).

Plaintiff Broadcast Music ("BMI") is a performing rights society, licensing the right to perform copyrighted material publicly on behalf of the owners of those copyrights. (Plaintiffs' Statement of Material Facts (Doc. 23-4) (hereinafter "Plaintiffs' Statement") at ¶ 1). The other plaintiffs are the copyright owners of the various compositions which are the subject of the lawsuit. (Id. at ¶ 2). BMI has obtained non-exclusive public performances rights for each of the compositions here in question from the copyright holders. (Id. at ¶ 4). BMI grants music users like broadcasters and owners and operators of concert halls, restaurants, nightclubs and hotels the right to publicly perform any of the works in BMI catalog through a "blanket license agreement." (Id. at ¶ 5). BMI does not operate for profit, but instead distributes all of the money it collects (minus expenses and reserves) back to the publishers and composers of the works. (Id. at ¶ 6). At the time the lawsuit was filed, defendants owned and/or operated Amore Ristorante in South Abington Township, Pennsylvania. (Id. at ¶ 7). Defendant Marinaro was a manager at the restaurant until September 2008. (Defendants' Counterstatement of Material Facts (Doc. 29) (hereinafter "Defendants' Statement") at ¶ 7). The restaurant featured regular performances of live and recorded music. (Plaintiffs' Statement at ¶ 7).

Beginning in March 2005, BMI repeatedly informed defendants that they needed permission to offer public performances of copyrighted music. (Id. at ¶ 8). After much fruitless negotiation, BMI instructed defendants on February 2, 2006 that they should cease public performances of music licensed by BMI. (Id. at ¶ 10). Such performances continued after this demand. (Id.). Plaintiffs sent an investigator to the bar, who prepared a report naming the twenty-three songs referenced in this lawsuit as ones played by a band in the restaurant on October 6-7, 2007.*fn1 (Id. at ¶¶ 10-11). BMI had offered a license to perform the songs, but defendants declined. (Id. at ¶ 9). Defendants contend that they had a valid license to perform the songs from the American Society of Composers and Producers ("ASCAP"), another performing rights society. (Defendants' Statement at ¶ 15). This license, they contend, was valid from July 1, 2007 to December 31, 2009. (Id.). Moreover, the songs performed on those nights were performed by live bands, and defendants insist they reasonably believed that the bands had proper clearance. (Id. at ¶ 16). Plaintiffs maintain that they had registered copyrights for the songs and that BMI had the right to issue licenses to perform them. (Plaintiffs' Statement at ¶ 17).

Plaintiffs contend that between March 2005 and December 2007 they repeatedly informed defendants that they needed to obtain permission to perform BMI songs in the restaurant. (Id. at ¶ 15). Defendants insist that they repeatedly requested information on BMI's services, but did not receive it. (Defendants' Statement at ¶ 8). Their statement of facts contains numerous citations from letters written by defense counsel demanding information and complaining that plaintiffs have written many threatening letters but not provided any information upon which defendants could act. (Id. at ¶ 9). Defendants concede that BMI offered a licensing agreement, but they did not act because they were waiting for more information on what the license covered. (Id. at ¶¶ 8-9). Finally, defendants attempted to obtain a license from BMI, but the parties could not come to an agreement on the fees required. (See Affidavit of Alexander Tarapchak (Doc. 28) at ¶¶ 7-8).

Plaintiffs filed the instant action on March 28, 2008. (See Doc. 1). The complaint raises a copyright infringement cause of action for each of 23 songs annexed to the complaint. The complaint seeks an injunction preventing the infringement of any copyrighted material licensed by BMI, statutory damages pursuant to 17 U.S.C. § 504(c), and costs and attorney's fees. On January 9, 2009, plaintiffs filed a motion for summary judgment (Doc. 23). The parties then briefed the issue and the court held argument, bringing the case to its present posture.

Jurisdiction

As this case is brought pursuant to the Copyright Act, 17 U.S.C. § 101, et seq., the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

Standard of Review

The case is before the court on defendant's' motion for summary judgment.

Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary ...


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