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Broadcast Music Inc. v. CJ's Saloon LLC

United States District Court, N.D. Alabama, Middle Division

August 20, 2019

BROADCAST MUSIC, INC., et al., Plaintiffs,
v.
CJ's SALOON LLC d/b/a CJ's SALOON a/k/a CJS SALOON, and CYNTHIA DEWBERRY, Defendants.

          MEMORANDUM OPINION

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE.

         This 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).

         Because 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.

         I. BACKGROUND

         A 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).

         Plaintiffs 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).

         Defendant 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 ¶ 21).

         Between 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).

         BMI 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 ¶ 18).

         II. DISCUSSION

         Federal 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 liability.

         To 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 ΒΆ 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. ...


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