United States District Court, N.D. Alabama, Middle Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE.
copyright infringement matter comes before the court on
Plaintiffs Broadcast Music, Inc., Manchaca Music, Blame
Music, Fourteenth Hour Music, Inc., Springtime Music, Inc.,
Bocephus Music, Inc., Sony/ATV Songs LLC, Cotillion Music,
Inc., Rondor Music International, Inc., Arc/Conrad Music LLC,
Songs of Universal, Inc., Escatawpa Songs, LLC, and Leahrae
Music Co.'s motion for default judgment. (Doc. 10). After
the Clerk entered default against Defendants CJ's Saloon
LLC and Cynthia R. Dewberry (doc. 9), Plaintiffs moved under
Federal Rule of Civil Procedure 55(b) for a default judgment,
seeking a statutory damages award of $27, 000, a permanent
injunction, and attorney's fees and costs in the amount
of $3, 955. (Doc. 10 at 2).
Plaintiff's well-pleaded allegations and other evidence
support their claims for copyright infringement, the court
finds that Plaintiffs have established that Defendants are
liable for copyright infringement. Accordingly, the court
WILL GRANT the motion for default judgment,
WILL AWARD Plaintiffs $27, 000 in statutory
damages, and WILL ENTER a permanent
injunction. The court also finds that Plaintiffs' request
for attorney's fees and costs in the amount of $3, 955 is
reasonable, and it WILL GRANT
Plaintiffs' request for those fees and costs.
defaulting defendant “admits the plaintiff's
well-pleaded allegations of fact” for purposes of
liability. Buchanan v. Bowman, 820 F.2d 359, 361
(11th Cir. 1987) (quotation marks omitted)). In resolving a
motion for default judgment, the court also may consider
evidence presented in the form of an affidavit or
declaration. Frazier v. Absolute Collection Serv.,
Inc., 767 F.Supp.2d 1354, 1362 (N.D.Ga. 2011).
other than Broadcast Music Group, Inc. (“BMI”)
own the copyrights in the nine musical compositions that are
the subject of this lawsuit. (Doc. 1 at ¶ 4- 16; Doc. 1
at 9-12; Doc. 10-1 at ¶ 4). BMI has acquired from the
other Plaintiffs nonexclusive public performance rights of
those compositions and millions of other compositions,
collectively known as the BMI Repertoire. (Doc. 1 at ¶
3; Doc. 10-1 at ¶¶ 2, 4).
CJ's Saloon LLC operates a bar known as CJ's Saloon
in Arab, Alabama. (Doc. 1 at ¶ 17; see Doc.
10-2 at 10). CJ's Saloon regularly features public
performances of live and recorded music. (Doc. 1 at ¶
18). Defendant Cynthia R. Dewberry is a member of CJ's
Saloon LLC and is responsible for operating and managing the
LLC and CJ's Saloon. (Doc. 1 at ¶ 20). Ms. Dewberry
also has the right and ability to supervise CJ's
Saloon's activities, and she has a direct financial
interest in the LLC and CJ's Saloon. (Doc. 1 at ¶
May 2016 and September 2018, BMI repeatedly notified
Defendants that they needed permission for public
performances of copyrighted music. (Doc. 1 at ¶ 23; Doc.
10-2 at ¶¶ 3-5, 7, 13-14). In all, BMI called
Defendants over 20 times and sent over 20 letters. (Doc. 1 at
¶ 23; Doc. 10-2 at ¶¶ 3-5, 13-14). Included in
the letters were cease and desist notices, which provided
Defendants with formal notice that they must immediately
cease all use of BMI-licensed music at CJ's Saloon. (Doc.
1 at ¶ 23; Doc. 10-2 at ¶ 5; Doc. 10-2 at 51-58).
BMI offered to enter into a blanket license agreement with
Defendants, but Defendants have not entered the agreement.
(Doc. 10-2 at ¶¶ 3, 8, 17; Doc. 10-2 at 37-61).
agents visited CJ's Saloon on May 24, 2018, May 25, 2018,
September 28, 2018, and September 29, 2018. (Doc. 10-2 at
¶¶ 9-12). During each of these visits, the agents
confirmed that Defendants performed various musical
compositions in the BMI Repertoire without a license or
permission to do so. (Doc. 1 at ¶¶ 24-25; Doc. 10-2
at ¶¶ 9-12; Doc. 10-2 at 10-35). Defendants
continue to provide unauthorized public performances of works
in the BMI Repertoire. (Doc. 1 at ¶ 30; Doc. 10-2 at
Rule of Civil Procedure 55 establishes a two-step procedure
for obtaining a default judgment. First, when a defendant
fails to plead or otherwise defend a lawsuit, the Clerk of
Court must enter the party's default. Fed.R.Civ.P. 55(a).
Second, after entry of the clerk's default, if the
defendant is not an infant or an incompetent person, the
court reviews the sufficiency of the complaint and its
underlying substantive merits to determine whether a moving
party is entitled to default judgment. Fed.R.Civ.P. 55(b)(2);
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370
n. 41 (11th Cir. 1997). Here, the Clerk already entered
default. Therefore, the court must decide whether
Plaintiffs' complaint and other evidence establishes
prevail on a copyright infringement claim based on
unauthorized public performances of a copyrighted musical
composition, a plaintiff must demonstrate:
(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 the action; (4) that the
compositions were performed publicly by the defendant; and
(5) that the defendant had not receive permission from any of
the plaintiffs or their representatives for such performance.
Broadcast Music, Inc. v. Evie's Tavern Ellenton,
Inc., 772 F.3d 1254, 1258 (11th Cir. 2014). Plaintiffs
have established the first three elements of their copyright
claims. For each subject musical composition, the schedule
attached to Plaintiffs' complaint lists the publisher or
owner, the date of registration with the Copyright Office,
and the registration number listed on the registration
certificate. (Doc. 1 at 9-12; see also Doc. 10-1 at
¶ 4). Plaintiff's complaint and evidence also
establish that on at least nine occasions, Defendants
publicly performed the musical compositions at issue without
permission from Plaintiffs or any of their representatives.