United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK UNITED STATES DISTRICT JUDGE.
matter came before the Court on Plaintiffs' Motion for
Default Judgment . The Clerk's Entry of Default was
filed on November 23, 2016. Therefore, the motion is ripe for
and Procedural Background
filed the Complaint in this action on August 29, 2016. In
compliance with Federal Rule of Civil Procedure 4(c),
Defendants Steele's Restaurant, Inc. and Jason L. Steele
were served with a copy of the Summons and Complaint on
September 16, 2016. Defendants Steele's Restaurant, Inc.
and Jason L. Steele were required to file and serve their
Answer on Plaintiffs no later than October 8, 2016. To date,
no responsive pleading has been filed or served.
Broadcast Music, Inc. (BMI) is a “performing rights
society” which licenses the right to publicly perform a
repertoire of copyrighted musical compositions works on
behalf of the copyright owners of these works. See
17 U.S.C. § 101. According to sworn affidavit submitted
to the Court by BMI Attorney John Ellwood, BMI has acquired
the non-exclusive public performance rights for the
compositions that are the subject of this lawsuit. The other
Plaintiffs are the copyright owners of the individual
BMI grants to music users such as Defendants the right to
perform publicly any of the works in their repertoire by
means of “blanket license agreements.” However,
since October 2014, BMI has attempted to contact Defendants
over fifty times in an effort to inform them of their
obligations under the Copyright Act with respect to the
necessity of purchasing such a license agreement. Brian
Mullaney, Vice President, Sales, Licensing for BMI attested
by affidavit to the Court that Defendants failed to enter a
license agreement and continued to offer unauthorized
performance of BMI licensed music. Therefore, according to
his affidavit, BMI authorized Krystol Wade to visit
Steele's Dive to make an audio recording and written
report of the music being performed on June 3, 2016. Upon
reviewing the audio recording, BMI confirmed the performance
of “Carrying Your Love With Me, ” published by
Warner-Tamerlane Publishing Corp., Jeff Stevens Music, and
Rancho Belita Music, “Mama Tried, ” published by
Sony/ATV Songs, LLC, “Folsom Prison” (a/k/a
“Folsom Prison Blues”), published by House of
Cash, Inc., and “Old Habits, ” published by
Bocephus Music, Inc.. Each song is within the BMI repertoire.
continue to disregard required fees and allegedly continue to
violate the copyright laws by publicly performing or allowing
to be performed the four songs in question. Therefore,
Plaintiffs allege four claims of willful copyright
infringement, based upon Defendants' unauthorized public
performance of these songs.
the Copyright Act, the copyright owner may elect to recover
statutory damages instead of actual damages. 17 U.S.C. §
504(c)(1). Statutory damages range from $750 to $30, 000 per
work infringed. 17 U.S.C. § 504(c)(1); Broadcast
Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th
Cir. 1988). Indeed, district courts are afforded broad
discretion in determining the size of statutory damage awards
in copyright infringement actions. Fermata Int'l
Melodies, Inc. v. Champions Golf Club, Inc., 712 F.Supp.
1257, 1263 (S.D. Tex. 1989), aff'd sub nom, Fermata
Melodies v. Champions Golf, 915 F.2d 1567 (5th Cir.
1990). A court may consider both restitution and
deterrence when formulating the “just” amount of
damages. F.W. Woolworth Co. v. Contemporary Arts,
Inc., 344 U.S. 228, 233, 73 S.Ct. 222, 97 L.Ed. 276
(1952); Fermata, 712 F.Supp. at 1263.
frequently grant damage awards in excess of the statutory
minimum where plaintiffs demonstrate that an infringement was
willful. Jobete Music Co. v. Hampton, 864 F.Supp. 7,
10 (S.D.Miss. 1994) (awarding $2500 per infringement where
evidence demonstrated that ASCAP notified defendants of their
infringing activity prior to initiating suit); Swallow
Turn Music v. Wilson, 831 F.Supp. 575, 581 (E.D. Tex.
1993) (finding $2500 per infringement to be a just award
considering the willfulness of the violations and the need
for retribution and deterrence); Crabshaw Music v.
K-Bob's of El Paso, Inc., 744 F.Supp. 763, 768 (W.D.
Tex. 1990) (awarding $1500 per infringement where the
defendants were well aware of their infringing activity);
Fermata, 712 F.Supp. at 1264, aff'd,
915 F.2d 1567 (awarding $2000 per infringement where a
defendant refused to obtain an ASCAP license despite repeated
offers). The intent behind such awards is to show defendants
that it is more costly to infringe than to obey copyright
laws. Broadcast Music, Inc. v. Barflies, Inc., No.
CIV.A. 03-304, 2003 WL 21674470, at *2 (E.D. La. July 16,
2003). Furthermore, a court may infer willfulness
from evidence that notice of a valid copyright was provided
to the defendant prior to the infringement. Malaco Inc.
v. Cooper, No. CIV.A. 300CV2648P, 2002 WL 1461927, at *4
(N.D. Tex. July 3, 2002) (citing Chi-Boy Music v. Charlie
Club, Inc., 930 F.2d 1224, 1227 (7th Cir. 1991)).
Plaintiffs contend that Defendants willfully infringed upon
frequently reach an award that is three to five times the
licensing fee owed by the defendant. Barflies, Inc.,
2003 WL 21674470, at *2 (citing several copyright
infringement cases where the statutory damages awarded were
equal to three to five times the licensing fees sought by the
copyright owners). Plaintiffs have introduced affidavits as
evidence of damage incurred. According to BMI's Vice
President, Brian Mullaney, had Defendants entered into an
agreement at the time BMI first contacted them in October
2014, the estimated license fees between October 2014 and the
present would have been approximately $5, 812.50.
Accordingly, Defendants request total statutory damages of
less than three times the license fee owed, sixteen thousand
dollars ($16, 000.00). Specifically, Plaintiff requests an
award of $4, 000.00 per violation.
Court finds this amount both within the statutorily mandated
parameters, and reasonable given the intent of the pertinent
statute. See 17 U.S.C. § 504(c)(2). Therefore,
Defendants Steele's Restaurant, Inc. and Jason L. Steele
are assessed, jointly and severally, statutory damages in the
amount of four thousand dollars ($4, 000) for each of the
four (4) musical compositions, for a total of sixteen
thousand dollars ($16, 000.00), pursuant to 17 U.S.C. Section
504(c)(1). Furthermore, Defendants Steele's Restaurant,
Inc. and Jason L. Steele owe, jointly and severally, interest
on the full amount of this judgment, from the date of this
judgment, pursuant to 28 U.S.C. Section 1961.
there appears to be a danger of continuing infringement,
based on Defendants' refusal to comply with copyright
laws. Therefore, Defendants Steele's Restaurant, Inc.,
Jason L. Steele, and their agents, servants, employees and
all persons acting under their permission or authority shall
be permanently enjoined and restrained from infringing, in
any manner, the copyrighted musical compositions licensed by
Broadcast Music, Inc. See 17 U.S.C. § 502(a);
Barflies, Inc., 2003 WL 21674470, at *1; see
also, e.g., Broadcast Music, Inc. v. DeGallo, Inc., 872
F.Supp. 167 (D.N.J. 1995).
also request the Court to order Defendants to pay costs and
reasonable attorneys' fees. The Copyright Act provides
for a district court to award costs and attorneys' fees
to the prevailing party in a copyright infringement action.
17 U.S.C. § 505. While the award of attorneys' fees
is left to the court's discretion, attorneys' fees
“are the rule rather than the exception and should be
awarded routinely.” Positive Black Talk Inc. v.
Cash Money Records, Inc., 394 F.3d 357, 380 (5th Cir.
2004) abrogated on other grounds by Reed Elsevier, ...