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Broad. Music, Inc. v. Evie's Tavern Ellenton, Inc.

United States Court of Appeals, Eleventh Circuit

November 21, 2014

EVIE'S TAVERN ELLENTON, INC., d.b.a Elvie's Tavern Ellenton, MICHAEL EVANOFF, individually, Defendants - Appellants

Page 1255

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:11-cv-02056-EAK-TBM.

For Broadcast Music, Inc., Sony/Atv Songs Llc, d.b.a.: Sony/ATV Acuff Rose Music, The Bernard Edwards Company, Llc, R-Key Darkus Publishing, Orbi-Lee Publishing, Plaintiffs - Appellees: Frank Robert Jakes, Johnson Pope Bokor Ruppel & Burns, LLP, Tampa, FL; Zachary David Messa, Johnson Pope Bokor Ruppel & Burns, LLP, Clearwater, FL.

For MICHAEL EVANOFF, individually, Defendant - Appellant: Michael Moran, Law Offices of Michael Moran, Sarasota, FL.

Before ED CARNES, Chief Judge, and RESTANI,[*] Judge, and MERRYDAY,[**] District Judge.


Page 1256


This appeal follows the district court's grant of summary judgment in the Appellees' favor. Appellants argue that summary judgment was granted improperly because there are genuine issues of material fact as to the copyright ownership of the musical compositions at issue and as to whether they were innocent infringers. Appellants also contest the district court's award of attorneys' fees and its imposition of a permanent injunction. After careful review, and with the benefit of oral argument, we affirm.

Page 1257


Appellee Broadcast Music, Inc. (" BMI" ) is a " performing rights society" that enters into nonexclusive licenses with copyright owners to publicly perform copyrighted musical compositions. The remaining Appellees are the copyright owners with whom BMI contracted. BMI's agreements with the copyright owners give BMI the right to operate as the copyright owners' " true and lawful attorney." The agreements further note that any actions commenced by BMI to recover for copyright infringement will be for BMI's sole benefit, even if BMI decides to join the copyright owner as a party to the suit. Once BMI has acquired the nonexclusive right to publicly perform the musical compositions from the copyright owners, it contracts with third parties (broadcasters, music halls, bar owners, restaurants, etc.) to perform these musical compositions at their establishments.

BMI and the other Appellees brought a copyright infringement action against Evie's Tavern Ellenton, Inc., and its owner Michael Evanoff (collectively, " Appellants" ). Originally, Appellees asserted that the Appellants publicly performed six copyrighted works without a license despite numerous cease and desist letters and phone calls. Based on the declarations, affidavits, and exhibits submitted by Appellees, the district court granted summary judgment in the Appellees' favor on five of the six musical compositions.[1] Summary judgment was awarded over Appellants' objections that Appellees had failed to establish a proper chain of title for each work. Appellants now appeal the summary judgment award and maintain that there are material issues of fact in the chain of title for each of the five titles. Appellants further assert that they were innocent infringers and the district court should have reduced the statutory damages imposed accordingly. Finally, Appellants challenge the district court's attorneys' fees award and permanent injunction.


A district court's order granting summary judgment is reviewed de novo. Johnson v. Governor of Fla., 405 F.3d 1214, 1217 (11th Cir. 2005). In undertaking such a review, the court " view[s] the record and draw[s] all reasonable inferences in the light most favorable to the non-moving party." Johnson, 405 F.3d at 1217. Summary judgment is appropriate when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

Attorneys' fees and permanent injunctions awarded under the Copyright Act are reviewed for abuse of discretion. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006); Montgomery v. Noga, 168 F.3d 1282, 1303 (11th Cir. 1999). " [T]he abuse of discretion standard allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment." In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994) (internal quotation marks omitted). It is an abuse of discretion for the district court to ...

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