Has your bar, tavern restaurant or nightclub get hit with an infringement letter regarding karaoke piracy? Yes, it does happen
Here is an interesting case I came across which I thought was blog-worthy. If you own a night club or bar/restaurant that offers karaoke, you need to make sure you have the property music rights from BMI, ASCAP or other copyright holder. If not, you could find your business thrust into a federal court controversy. This case involves a club owner who was hit without almost $60,000 in penalties for copyright infringement damages for failure to properly license music being used in the stage performances.
Karaoke Piracy Case from Texas Federal Court
This case involves BMI music vs. Midtown Beverage, LLC, DBA the Clarion Inn.
It was filed in the Southern District of Texas.
Here is some sample language from the Court case in granting Summary Judgement for the Plaintiff:
“This is a copyright infringement lawsuit. Plaintiff Broadcast Music, Inc. (“BMI”) is a corporation that has been granted the right to license the public performance rights in approximately 7.5 million copyrighted musical compositions (“BMI Repertoire”). The other Plaintiffs are the owners of the copyrights in the musical compositions that are subject to this lawsuit. BMI grants to music users, such as broadcasters and the owners and operators of concert halls, restaurants, nightclubs and hotels, the right to publicly perform any of the works in BMI's Repertoire by means of “blanket license agreements.”
“Plaintiffs allege fifteen claims of willful copyright infringement based upon Defendants' unauthorized public performances of musical compositions from the BMI Repertoire. BMI further alleges that between July 2010 and October 2011, it repeatedly informed Defendants of the need to obtain permission for public performances of copyrighted music. BMI sent thirty-one letters to Defendants advising them of the need to enter into a license agreement. Despite BMI's repeated offers of a license agreement to Defendants, they ignored all communications. On July 11, 2011, BMI instructed Defendants to cease public performances of music licensed by BMI. Nevertheless, public performances of BMI licensed music continued at Clarion Inn Houston East, as chronicled by a BMI investigator on September 17, 2011. The investigator generated an audio recording and written report of the songs played at Brewsky's on September 17, 2011, which includes all fifteen of the songs that are the subject of this infringement action. Plaintiffs then brought this action for copyright infringement in May 2012.”
“Copyright Claim The Copyright Act provides the owner of a copyright with the exclusive right to perform, or to authorize others to perform, the copyrighted work. 17 U.S.C. § 106(4). Any person who violates this exclusive right is an infringer. 17 U.S.C. § 501(a).
In order to prevail in an action for copyright infringement, Plaintiffs must establish the following elements:
(1) originality and authorship of the copyrighted worked involved;
(2) compliance with the formalities of the Copyright Act;
(3) proprietary rights in the copyrighted works involved;
(4) public performance of the compositions involved;
(5) lack of authorization for public performance.”
See Fermata Int'l Melodies, Inc. v. Champions Golf Club, Inc., 712 F.Supp. 1257, 1259 (S.D. Tex. 1989), aff'd, 915 F.2d 1567 (5th Cir. 1990).
“Statutory Damages: The Copyright Act empowers Plaintiffs to elect to receive an award of statutory damages “in a sum of not less than $750 or more than $30,000” per infringement in lieu of an award representing the Plaintiffs' actual damages and the Defendants' profits. 17 U.S.C. §504(c)(2). Within these statutory limits, the assessment of damages is at the discretion of the Court. See F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-32 (1952). Plaintiffs request an award of $3,000 for each of the fifteen copyrighted songs infringed, for a total award of $45,000. Courts considering awards of statutory damages have recognized that awards up to $10,000 per infringement are appropriate in cases where the infringement resulted from deliberate indifference toward copyright laws. See Broadcast Music, Inc. v. question Mark, 220 U.S.P.Q. 531, 532-33 (N.D. Tex. 1983)(“an award of $10,000 for each of nine infringements is reasonable, particularly in light of Question Mark's refusal of BMI's offer to grant a license for the public performance of the compositions in issue.”); Controversy Music v. Down Under Pub Tyler, Inc., 488 F. Supp. 2d 572, 579 (E.D. Tex. 2007) (“given the Defendants' willful infringement, an award of $5,000 per infringement is just and sufficient to deter future copyright violations while promoting respect for the law.”). Defendants have willfully disregarded Plaintiffs' repeated attempts to enter into a license agreement. Therefore, Plaintiffs' request of $3,000 for each of the fifteen infringements is reasonable.
The Copyright Act provides that the “court may also award a reasonable attorney's fee to the prevailing party.” 17 U.S.C. § 505. Courts have routinely awarded the reasonable fees incurred by a plaintiff asserting its rights. “The Fifth Circuit has acknowledged that an award of attorneys' fees in copyright cases is within the discretion of the trial court, but has held that the award of attorneys' fees in copyright cases is the rule rather than the exception, and should be awarded routinely.” Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 411 (5th Cir. 2004) (citing Hogan Sys., Inc. v. Cybresource Int'l, Inc., 158 F.3d 319, 325 (5th Cir. 1998)). Defendants have not presented any argument why there should not be an award of attorneys' fees. Furthermore, the Court finds that Defendants' deliberate misconduct warrants an award of attorneys' fees. Plaintiffs set forth attorneys' fees and costs in the Declaration of William R. Hales (“Hales Declaration”) and other records. (Doc. No. 18, Ex. A, APP. 400-405.) Defendants do not dispute Plaintiffs' attorneys' fees and costs of $11,243.36. Therefore, the Court awards Plaintiffs $11,243.36
Contact a music infringement copyright lawyer
We can help both Plaintiff (rights holders) and defendants accused of willful copyright infringement. Give us a call at (877) 276-5084 or email us at the email on the right side of this page. We can help with cease and desist letters, injunctions, and arbitration, mediation, or litigation. If you are dealing with a major music publisher, or BMI/ASCAP as you can see by this case they will be out to get their fees. We can help with defense of these cases, and can help musicians, artists and bands enforce their rights. Some cases may be taken on a flat rate fee, or contingency fee basis.
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