Mob Music Publishing v. Zanzibar on the Waterfront, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
MOB MUSIC PUBLISHING, et al., )
)
Plaintiffs, )
) Civil Action No. 08-1617(EGS)
v. )
)
ZANZIBAR ON THE )
WATERFRONT, LLC, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

This is an action for copyright infringement arising under

the United States Copyright Act, 17 U.S.C. § 101. Plaintiffs

allege that defendants infringed their copyrights by giving

unauthorized public performances of six musical compositions at

defendants’ establishment, Zanzibar on the Waterfront Restaurant.

Pending before the Court is Plaintiffs’ Motion for Summary

Judgment. Upon consideration of the motion, the response and

reply thereto, the applicable law, and the entire record, the

Court hereby GRANTS Plaintiff’s Motion for Summary Judgment.

I. BACKGROUND

A. The Parties

Plaintiffs are the purported owners of six musical

compositions at issue in this action: (i) Plaintiff MOB Music

Publishing purportedly owns the copyright to “Cha Cha Slide”;

(ii) Plaintiff Marley Marl Music, Inc. purportedly owns the
copyright to “Around the Way Girl”; (iii) Plaintiffs WB Music

Corp., Ain’t Nothing But Funkin’ Music, Music of Windswept,

Blotter Music, Elvis Mambo Music, and Curtis James Jackson d/b/a

50 Cent Music purportedly own the copyright to “In Da Club”; (iv)

Plaintiffs Odnil Music Limited and Fifty-Six Hope Road Music

Limited are the purported owners of the copyright to “Jamming”;

(v) Plaintiffs Odnil Music Limited and Fifty-Six Hope Road Music

Limited purportedly own the copyright to “Is This Love”; and (vi)

EMI April Music Inc., Big Poppa Music, and Bovina Music

purportedly own the copyright to “Big Poppa.” Plaintiffs’

Statement of Material Facts (“Pls.’ SMF”) ¶ 1.1

Defendant Zanzibar on the Waterfront, LLC is the owner and

operator of Zanzibar on the Waterfront Restaurant - a nightclub

and restaurant located in the District of Columbia, where live

music is routinely performed. Pls.’ SMF ¶¶ 2-4. Defendant

Michel L. Daley is the managing member of Zanzibar on the

Waterfront, LLC. Pls.’ SMF ¶ 7. In his capacity as managing

member, Defendant Daley performs a variety of functions for

Zanzibar on the Waterfront Restaurant, including obtaining

insurance, making bank deposits, signing checks, hiring and

1
As discussed infra, in Section III.A.1, defendants dispute
plaintiffs’ ownership of the copyrights to these musical
compositions. All other references to plaintiffs’ statements of
material facts included herein, however, are undisputed by
defendants.

2
firing employees, marketing and promoting the restaurant,

entering into licensing agreements for the restaurant, and

handling all legal matters – including lawsuits. Pls.’ SMF ¶¶ 8,

9.

B. ASCAP

Each plaintiff in this action is a member of the American

Society of Composers, Authors and Publishers (“ASCAP”), to which

they have granted a nonexclusive right to license non-dramatic

public performances of their copyrighted musical compositions.

Pls.’ Mot. at 2. On behalf of plaintiffs and its more than

360,000 members, ASCAP issues licenses to thousands of television

networks, radio stations, nightclubs, restaurants, and other

establishments whose owners desire to have public performances of

copyrighted musical compositions in the ASCAP repertory. Pls.’

Mot. at 2.

Defendants were licensed to have live performances of any of

the hundreds of thousands of works in the ASCAP repertory for

periods prior to August 15, 2006. Pls.’ SMF ¶ 15. Effective

August 15, 2006, however, ASCAP terminated defendants’ license

for failure to pay license fees. Pls.’ SMF ¶ 15. Although ASCAP

representatives made repeated offers to reinstate the license of

Zanzibar on the Waterfront, defendants have failed to renew their

ASCAP license. Pls.’ SMF ¶ 16. Accordingly, defendants have

3
been without a license to have live performances of musical

compositions in the ASCAP repertory since August 15, 2006.

C. This Action

On the evening of November 16, 2007, an investigator for

ASCAP visited Zanzibar on the Waterfront Restaurant for the

purpose of “making a contemporaneous list of the titles of all

musical compositions performed during [his] visit which [he] was

able to recognize.” Pls.’ Ex. J, Declaration of Kevin McDonough

(“McDonough Decl.”) ¶ 4. During his visit, the ASCAP

investigator heard performances of five songs in the ASCAP

repertory: “Cha Cha Slide,” “Around the Way Girl,” “In Da Club,”

“Jamming,” and “Is This Love.” McDonough Decl. ¶ 6. Plaintiffs

filed suit against defendants on September 19, 2008, alleging

that these musical compositions were performed in violation of

the Copyright Act.

On February 1, 2009 – while this lawsuit was pending – ASCAP

sent another investigator to Zanzibar on the Waterfront

Restaurant. See Pls.’ Ex. K, Declaration of Mark Eanes (“Eanes

Decl.”). During this visit, the ASCAP investigator heard the

performance of “Big Poppa” – another musical composition in the

ASCAP repertory. See Eanes Decl. ¶ 6. Accordingly, on April 16,

2009, plaintiffs amended their complaint to include a claim for

this alleged infringement.

4
 A scheduling order was entered in this action on February 6,

2009, which provided for four months of fact and expert

discovery. See Docket No. 21. Discovery closed in this action

on June 12, 2009. On June 24, 2009, the Court held a status

hearing in the case, at which time a briefing schedule for

summary judgment was implemented.

On August 24, 2009, plaintiffs filed a motion for summary

judgment. Plaintiffs seek (i) statutory damages in the amount of

$10,000 for each cause of action, for a total of $60,000; (ii) an

injunction prohibiting further infringing performances of any

copyrighted musical compositions in the ASCAP repertory; and

(iii) reasonable attorney’s fees and costs. See Pls.’ Mot. at 3,

24. Defendants oppose the motion and ask the Court to, sua

sponte, enter summary judgment in defendants’ favor. See Defs.’

Opp’n Br. at 1. Alternatively, defendants seek additional

discovery pursuant to Federal Rule of Civil Procedure 56(f)

related to the circumstances surrounding Bob Marley’s composition

of “Jamming” and “Is This Love.” See generally Defs.’ Ex. A,

Affidavit of Ronald C. Jessamy, Sr. (“Jessamy Aff.”).

Plaintiffs’ motion for summary judgment is now ripe for

determination by the Court.

II. STANDARD OF REVIEW

Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

5
that the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986); Waterhouse v. Dist. of Columbia, 298 F. 3d 989, 991

(D.C. Cir. 2002). A fact is genuine “‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.’” Steele v. Schafer, 535 F. 3d 689, 692 (D.C. Cir. 2008)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Facts are material if they “‘might affect the outcome of

the suit under the governing law.’” Id. (quoting Anderson, 477

U.S. at 248). The party seeking summary judgment bears the

initial burden of demonstrating an absence of genuine issues of

material fact. Celotex, 477 U.S. at 322. In determining whether a

genuine issue of material facts exists, the Court must view all

facts in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

597 (1986); Keyes v. Dist. of Columbia, 372 F. 3d 434, 436 (D.C.

Cir. 2004). “When a motion for summary judgment is properly made

and supported, an opposing party may not rely merely on

allegations or denials in its own pleading; rather, its response

must . . . set out specific facts showing a genuine issue for

trial.” Fed. R. Civ. P. 56(e)(2); see also Celotex, 477 U.S. at

324.

6
III. ANALYSIS

A. Copyright Infringement

“A plaintiff seeking to establish copyright infringement

must prove ‘(1) ownership of a valid copyright, and (2) copying

of constituent elements of the work that are original.’”

Stenograph LLC v. Bossard Assoc., Inc., 144 F.3d 96, 99 (D.C.

Cir. 1998) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340, 361 (1991)). In the music performance context,

these requirements have been alternatively stated as: (1)

originality and authorship of the compositions involved; (2)

compliance with the formalities required to secure a copyright;

(3) plaintiff’s ownership of the copyright; and (4) defendant’s

public performance of the compositions. EMI April Music, Inc. v.

White, 618 F. Supp. 2d 497, 504 (E.D. Va. 2009).

1. Ownership of a Valid Copyright

To establish ownership of valid copyrights to the musical

compositions at issue in this case, plaintiffs have filed copies

of the copyright registration certificates for each musical

composition as well as other pertinent documents demonstrating

chain of title. See generally Pls.’ Ex. B. Because these

copyright registration certificates constitute prima facie

evidence of plaintiffs’ valid copyrights, see 17 U.S.C. § 410(c)

(“In any judicial proceedings the certificate of a registration

made before or within five years after first publication of the

7
work shall constitute prima facie evidence of the validity of the

copyright and of the facts stated in the certificate.”),2

defendants have the burden of establishing the invalidity of

plaintiffs’ titles. See, e.g., Saenger Org. v. Nationwide Ins.

Licensing Assocs., 119 F.3d 55, 59 (1st Cir. 1997) (“[A]

certificate of copyright registration constitutes prima facie

evidence of copyrightability and shifts the burden to the

defendant to demonstrate why the copyright is not valid.”

(internal quotation marks omitted)).

Defendants contest plaintiffs’ ownership of the copyrights,

arguing that “[t]he record demonstrates that plaintiffs have not

produced evidence that they own the copyrights to the works that

are subject of the complaint.” Defs.’ Opp’n Br. at 3. First,

with regards to the songs “Cha Cha Slide,” “Around the Way Girl,

2
See, e.g., Joelsongs v. Shelley Broad. Co., Inc., 491 F.
Supp. 2d 1080, 1083 (M.D. Ala. 2007) (finding that plaintiffs
satisfied the first element of copyright infringement “by
submitting copies of the copyright registration certificates
which, pursuant to 17 U.S.C. § 410(c), constitute prima-facie
evidence of copyright ownership”); Odnil Music Ltd. v. Katharsis
LLC, No. 05-545, 2006 WL 2545869, at *5 (E.D. Cal. July 21,
2006)(same); Simpleville Music v. Mizell, 451 F. Supp. 2d 1293,
1296 (M.D. Ala. 2006) (same); Flyte Tyme Tunes v. Miszkiewicz,
715 F. Supp. 919, 921 (E.D. Wisc. 1989) (same); Warner Bros.,
Inc. v. Lobster Pot, Inc., 582 F. Supp. 478, 481 (N.D. Ohio 1984)
(same); see also Van Halen Music v. Palmer, 626 F. Supp. 1163,
1165 (W.D. Ark. 1986) (“A prima facie case as to the first three
elements [of infringement of copyright in musical compositions]
may be made by submitting certified copies of copyright
registration certificates and any subsequent assignments.”
(citing cases)).

8
“In Da Club,” and “Big Poppa,” defendants argue that the

copyright registration certificates are insufficient to establish

copyright ownership “because the copyright registrants are not

the plaintiffs” and “the plaintiffs have not produced any

evidence of [a] written and signed transfer of ownership.”

Defs.’ Opp’n Br. at 5. Second, with regards to the songs

“Jamming” and “Is This Love,” defendants argue that the copyright

registration certificates – which list the registrant of the

copyright as “Bob Marley Music Ltd., employer for hire of Bob

Marley” – are improper because “a musical composition cannot be a

work for hire.” Defs.’ Opp’n Br. at 7-8. Defendants assert that

because “Jamming” and “Is This Love” are not valid “works for

hire,” Bob Marley Music Ltd. Inc. lacked authority to transfer

the copyrights to plaintiffs, thereby invalidating plaintiffs’

claims of ownership. These arguments will be explored in turn.

i. “Cha Cha Slide,” “Around the Way Girl, “In Da
Club,” and “Big Poppa”

As discussed above, defendants argue that plaintiffs have

failed to establish ownership of the copyrights for the musical

compositions “Cha Cha Slide,” “Around the Way Girl, “In Da Club,”

and “Big Poppa” because “[e]ach plaintiff in the instant case is

bringing suit as an assignee, yet none of the plaintiffs have

shown evidence of a chain of title from the author of the work to

them.” Defs.’ Opp’n Br. at 5. In light of the evidence

9
presented in this case, the Court finds defendants’ argument

unpersuasive.

Specifically, the original copyright registration forms for

“Cha Cha Slide,” “Around the Way Girl, “In Da Club,” and “Big

Poppa” list the plaintiffs in this action as the copyright

claimants. See Pls.’ Ex. B-A (copyright registration form for

“Cha Cha Slide,” which lists plaintiff MOB Music Publishing as

the “copyright claimant” and states that plaintiff obtained

ownership of the copyright by “transfer of rights by author”);

Pls.’ Ex. B-B (copyright registration form for “Around the Way

Girl,” which lists plaintiff Marley Marl Music Inc. as the

“copyright claimant” and states that plaintiff obtained ownership

of the copyright “by written agreement”); Pls.’ Ex. B-C

(copyright registration form for “In Da Club,” which lists

plaintiffs Curtis James Jackson, WB Music Corp., Ain’t Nothing

But Funkin’ Music, Music of Windswept, Blotter Music, and Elvis

Mambo Music as copyright claimants and states that plaintiffs

obtained ownership of the copyright “by written agreement”);

Pls.’ Ex. B-F (copyright registration form for “Big Poppa,” which

lists plaintiffs EMI April Music Inc., Big Poppa Music, and

Bovina Music as copyright claimants and states that plaintiffs

obtained ownership of the copyright “by virtue of written

agreement”). Because plaintiffs are listed as the copyright

claimants on the certificates of registration, they have

10
satisfied their initial burden of demonstrating copyright

ownership. As the leading treatise on this issue explains:

If the plaintiff was the author of the work in issue,
he has no problem of proof beyond proving such
authorship in establishing his ownership of the
copyright. Where, however, the plaintiff claims not as
author but as a direct or mesne assignee of the author,
the question arises as to where the burden of proof
lies in establishing the chain of title. Here, a
distinction must be observed between a plaintiff who,
as assignee of the copyright, (either common law or
statutory), first registered a claim of statutory
copyright in his name, and a plaintiff who was merely
an assignee of a previously registered copyright. As
the former has obtained a certificate of registration
that constitutes prima facie evidence of the validity
of his copyright, and of the facts stated therein, the
defendant has the burden of controverting the
plaintiff’s chain of title. However, an assignee of a
previously registered statutory copyright has the
burden of proving his chain of title because nothing in
the registration certificate evidences his right to
claim through the original copyright claimant. Once
such evidence is offered by the plaintiff, the burden
shifts to the defendant to establish the invalidity of
plaintiff’s title.

3-12 Nimmer on Copyright § 12.11[C]; see also Marobie-FL, Inc. v.

Nat’l Assoc. of Fire Equip. Distribs., 983 F. Supp. 1167, 1173

(N.D. Ill. 1997) (“A plaintiff’s chain of title from the author

is presumed by reason of the registration certificate where the

plaintiff obtained an assignment of rights prior to

registration.”). As defendants have produced no evidence to

controvert plaintiffs’ chain of title to the songs “Cha Cha

Slide,” “Around the Way Girl, “In Da Club,” and “Big Poppa,” the

11
Court concludes that plaintiffs have established their ownership

of valid copyrights for these musical compositions.

ii. “Jamming” and “Is This Love”

Next, defendants argue that plaintiffs have failed to

establish rightful ownership of “Jamming” and “Is This Love.” As

a threshold matter, plaintiffs have produced chain-of-title

evidence demonstrating assignment of the copyrights from Bob

Marley Music Ltd. to Plaintiffs Odnil Music Limited and Fifty-Six

Hope Road Music Limited. See Pls.’ Ex. B-D (copyright

registration form for “Is This Love,” which lists the author as

“Bob Marley Music Ltd. employer for hire of Bob Marley”;

certificates of assignment documenting transfer of ownership from

Bob Marley Music Ltd. to Odnil Music Limited and Fifty-Six Hope

Road Music Limited); Pls.’ Ex. B-E (copyright registration form

for “Jamming,” which lists the author as “Bob Marley Music Ltd.

employer for hire of Bob Marley”; certificates of assignment

documenting transfer of ownership from Bob Marley Music Ltd. to

Odnil Music Limited and Fifty-Six Hope Road Music Limited).

Defendants, however, ask the Court to reject this evidence,

arguing that Bob Marley Music Ltd. did not own the copyrights for

“Jamming” and “Is This Love” – as is stated on the copyright

registration forms – because these songs are not valid “works for

12
hire.”3 Defendants argue that because these songs cannot qualify

as works for hire, only Bob Marley – not Bob Marley Music Ltd. –

had the authority to transfer ownership of the musical

compositions, thereby rendering plaintiffs’ subsequent

assignments of the copyrights invalid. See Defs.’ Opp’n Br. at 7

(“Because these were not valid ‘works for hire,’ the copyrights

for ‘Jamming’ and ‘Is This Love’ vested in Bob Marley (the

individual), not Bob Marley Music Ltd. The Plaintiffs have made

no showing that Bob Marley transferred ownership of these two

songs to anyone let alone the Plaintiffs Odnil Music Limited and

Fifth Six Hope Road Music Limited.”). The Court finds this

argument unpersuasive.

As discussed above, copyright registration certificates –

together with certificates of assignment – constitute prima facie

evidence of a party’s ownership of a valid copyright. In this

case, Odnil Music Limited and Fifty-Six Hope Road Music Limited

submitted the copyright registration certificates for “Jammin”

and “Is This Love.” Defendants’ idle assertions regarding the

possibility that these Bob Marley songs were improperly

3
The work for hire doctrine is an exception to the general
rule in copyright that the author is the original owner of a
work. Section 201(b) of the Copyright Act provides that “[i]n
the case of a work made for hire, the employer or other person
for whom the work was prepared is considered the author for
purposes of this title, and, unless the parties have expressly
agreed otherwise in a written instrument signed by them, owns all
of the rights comprised in the copyright.” 17 U.S.C. § 201(b).

13
registered as “works for hire” - as well as defendants other

unsupported evidentiary complaints - are simply insufficient to

create a genuine issue of material fact as to plaintiffs’

ownership of the songs. See Ginger v. District of Columbia, 527

F.3d 1340, 1347 (D.C. Cir. 2008) (“‘[A] mere unsubstantiated

allegation . . . creates no genuine issue of fact and will not

withstand summary judgment.’”(quoting Harding v. Gray, 9 F.3d

150, 154 (D.C. Cir. 1993))); see also Varry White Music v. Banana

Joe’s of Akron, No. 05-1074, 2002 U.S. Dist. LEXIS 25736, at *11-

13 (N.D. Ohio 2002) (finding that the defendants’ “naked

assertions and blanket denials” regarding the validity of the

copyright registration certificates filed by the plaintiffs were

“insufficient to create a genuine issue of material fact as to

the first three elements of an infringement claim”).4 The Court

concludes, therefore, that plaintiffs have established their

ownership of valid copyrights for “Jamming” and “Is This Love.”

See also Odnil Music Ltd. v. Katharsis LLC, No. 05-545, 2006 WL

2545869, at *5 (E.D. Cal. July 21, 2006) (finding that Odnil

Music Limited and Fifty-Six Hope Road Music Limited “conclusively

4
Plaintiffs also persuasively argue that “[i]f Defendants are
allowed to prevail with their arguments, then every copyright
infringer will be able to dispute copyright ownership based on
valid registration certificates with baseless speculation,
unsupported by any evidence, and thereby eviscerate the statutory
command that a copyright registration certificate ‘shall
constitute prima facie evidence of the validity of the copyright
and of the facts stated in the certificate.’” Pls.’ Reply Br. at
15 (quoting 17 U.S.C. § 410(c)).

14
establish[ed]” their ownership of a copyright for “Jamming” and

three other Bob Marley songs “by proffering into evidence the

copies of copyright registration certificates and other pertinent

documents,” and rejecting the defendants’ unsupported contentions

regarding the plaintiffs’ ownership of the copyrights).5

5
Pursuant to Federal Rule of Civil Procedure 56(f),
defendants also request leave to conduct additional discovery “to
determine the circumstances of [the] compositions” of “Jamming”
and “Is This Love.” See generally Defs.’ Ex. A, Jessamy Aff.
¶¶ 3-6. The Court finds defendants’ request – which was filed
after the close of discovery and, indeed, after plaintiffs had
filed their motion for summary judgment pursuant to a schedule
agreed upon by the parties – to be both dilatory and speculative.
Defendants’ assertion that “[i]t is unclear from the discovery
provided by plaintiffs to date and from the limited evidence
provided with their motion whether these two songs were, in fact,
‘works for hire’ or if they were created ‘in the scope of
employment,’” Jessamy Aff. ¶ 4 - “without any supporting facts to
justify the proposition that the discovery sought will produce
the evidence required,” Messina v. Krakower, 439 F.3d 755,762
(D.C. Cir. 2006) (internal quotation marks omitted) – appears to
this Court to be nothing more than a last-minute attempt to take
out-of-time discovery in the hopes of potentially garnering the
evidence necessary to rebut plaintiffs’ prima facie case. As
plaintiffs explain: “[I]f this were a legitimate request,
Defendants should have properly requested additional documents
when they received the copyright certificates, which was before
the close of discovery. Defendants could have, at the very
least, sought to take further discovery well before Plaintiffs
prepared and filed their summary judgment motion. They did not
do so and Plaintiffs should not be made to suffer for Defendants’
inaction.” Pls.’ Reply Br. at 22. Accordingly, the Court DENIES
defendants’ request for Rule 56(f) discovery substantially for
the reasons set forth in plaintiffs’ reply brief. See Pls.’
Reply Br. at 18-22 (explaining why defendants’ request for
additional discovery is inappropriate, and providing
documentation that was presented to defense counsel before the
end of the discovery period regarding plaintiffs’ intent to rely
upon the copyright registration certificates and related
documentation to establish plaintiffs’ ownership of the
copyrights to “Jamming” and “Is This Love”).

15
 Accordingly, the Court finds that plaintiffs have

established proof of ownership of all musical compositions at

issue in this case.

2. Defendants’ Public Performance of the Musical
Compositions

In order to establish copyright infringement, plaintiffs

must also establish that the six copyrighted musical compositions

owned by plaintiffs were performed at the Zanzibar on the

Waterfront Restaurant without plaintiffs’ permission. The

affidavits of Kevin McDonough and Mark Eanes – the ASPAC

investigators – establish proof of the infringing behavior. See

Pls.’ Exs. J, K. Although defendants have generally denied that

the musical compositions were performed at the restaurant on the

dates alleged, they have offered no affirmative proof that the

compositions were not performed. See Defs.’ Response to Pls.’

SMF ¶¶ 15-16 (“Defendants do not know what songs were played in

their club on the dates in questions.”). Nor have defendants

offered any evidence that they received permission from the

individual plaintiffs to perform the disputed musical

compositions. See Pls.’ Ex. E-1, Daley Dep. Tr. Vol. 1 at 119-

120) (testimony of Defendant Daley indicating that he had no

reason to believe that any of the plaintiffs gave Zanzibar on the

Waterfront Restaurant permission to play any of musical

compositions at issue in this action). Defendants, therefore,

16
have failed to raise a genuine issue of fact necessary to defeat

plaintiffs’ motion for summary judgment. See Fed. R. Civ. P.

56(e)(2) (“When a motion for summary judgment is properly made

and supported, an opposing party may not rely merely on

allegations or denials in its own pleading[.]”).

In sum, the Court concludes that plaintiffs’ have

established that defendants unlawfully infringed upon their

copyrights for “Cha Cha Slide,” “Around the Way Girl, “In Da

Club,” “Big Poppa,” “Jamming,” and “Is This Love” through the

unauthorized performance of these musical compositions at

Zanzibar on the Waterfront Restaurant on November 17, 2007 and

February 1, 2009. Accordingly, the Court hereby GRANTS

plaintiffs’ motion for summary judgment.

B. Joint Liability

Plaintiffs contend that both defendants are jointly liable

for the copyright infringements alleged in their First Amended

Complaint. Pls.’ Mot. at 14-18. With respect to Defendant

Daley, plaintiffs argue that he may be held vicariously liable

for the copyright infringements because, inter alia, (i) he is

the managing member of Zanzibar on the Waterfront, LLC and is

held out to the public as such, Pls.’ SMF ¶¶ 7, 9; (ii) he has a

supervisory role with respect to the operations of Zanzibar on

the Waterfront Restaurant, SMF ¶¶ 8-9; (iii) he has the right and

ability to supervise the decision of which music is performed at

17
Zanzibar on the Waterfront Restaurant, Pls.’ Ex. E-1, Daley Dep.

Tr. Vol. 1 at 69-70, 127; and (iv) he derives a direct financial

benefit from the operation of Zanzibar on the Waterfront in the

form of a salary and dividends, Pls.’ SMF ¶ 10. Defendants do

not dispute these facts, nor do they respond to plaintiffs’

arguments in their opposition brief. The Court will

nevertheless, however, briefly review the law of vicarious

liability.

It is well established that an individual may be held

vicariously liable for copyright infringement if he (i) has the

“right and ability” to supervise the infringing activity and (ii)

has a “direct financial interest” in such activities. Rilting

Music, Inc. v. Speakeasy Enters., Inc., 706 F. Supp. 550, 556

(S.D. Ohio 1988) (discussing the widely-applied, two-prong test

for vicarious liability in a copyright infringement case

established in Shapiro, Bernstein & Co. v. H.L. Green Co., 316

F.2d 304 (2d Cir. 1963)). The imposition of liability on a

controlling individual is based upon the belief that the

individual is in a position to control the conduct of the entity

which is the primary infringer. Id. Lack of knowledge of the

infringing activity, however, is not a defense; nor is the fact

that independent contractors hired by defendants performed the

infringing musical compositions. See EMI April Music, 618 F.

Supp. 2d at 507. Indeed, “[e]ven when a restaurant proprietor

18
instructs band members not to perform copyrighted music at his

establishment, or inserts a provision to that effect in the

band’s contract, such proprietor cannot escape vicarious

liability when he has a right to supervise and a financial

interest in such performance.” Id. (citing cases). Accordingly,

the fact that “[t]he selection of songs played at the Defendants’

club is determined by non-employee, independent contractors who

are hired to play music at the club,” does not absolve Defendant

Daley of liability. Defs.’ Response to Pls.’ SMF ¶¶ 15-16.

Therefore, because it is undisputed that Defendant Daley had the

right and ability to supervise the infringing activity, and

because Defendant Daley had a financial interest in the

infringing activity through his operation of the profit-making

establishment, the Court concludes that Defendant Daley is

jointly and severally liable, along with his co-defendant

Zanzibar on the Waterfront, LLC, for the copyright infringements

that are the subject of this action.

C. Statutory Damages & Relief

Having found defendants jointly and severally liable for the

infringing behavior, the Court will now address the question of

damages and relief.

1. Statutory Damages

Plaintiffs seek statutory damages pursuant to 17 U.S.C.

§ 504(c)(1). Section 504(c)(1) directs the Court to award a

19
copyright owner an amount “not less than $750 or more than

$30,000” for each piece of work infringed. 17 U.S.C.

§ 504(c)(1). In a case where a defendant has willfully violated

a copyright, the Court “may increase the award of statutory

damages to a sum of not more than $150,000” for each piece of

work infringed. Id. § 504(c)(2).6

It is important to note that statutory damages “are intended

not merely for the restitution of reparation of injury, but to

deter wrongful conduct.” EMI April Music, 618 F. Supp. 2d at 508

(internal quotation marks omitted). As the Supreme Court has

long recognized:

[A] rule of liability which merely takes away the
profits from an infringement would offer little
discouragement to infringers. It would fall short
of an effective sanction for enforcement of the
copyright policy. The statutory rule, formulated
after long experience, not merely compels
restitution of profit and reparation for injury but
also is designed to discourage wrongful conduct.

F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 233

(1952). Indeed, in cases such as this, courts have routinely

awarded statutory damages in amounts between two and three times

6
Defendants contend that “the failure to pay a license fee to
[ASCAP] does not demonstrate willful conduct on the part of the
defendants in this case for copyright infringement.” Defs.’
Response to Pls.’ SMF ¶¶ 15-16. The Court need not decide this
issue, however, as plaintiffs are only seeking damages pursuant
to 17 U.S.C. § 504(c)(1). See Pls.’ Reply Br. at 16 (“[B]ecause
plaintiffs seek statutory damages under 17 U.S.C. § 504(c)(1), a
finding of willfulness is not necessary for the award of damages
requested by plaintiffs.”).

20
the license fees. EMI April Music, 618 F. Supp. 2d at 508

(citing cases).

Plaintiffs represent that had defendants been properly

licensed by ASCAP to date, defendants would owe approximately

$26,395.15 in license fees and finance charges. Pls.’ Mot. at 24

(citing Pls.’ Ex. I, Declaration of Douglas Jones ¶ 23).

Plaintiffs argue that an award of damages equivalent to the ASCAP

license fees, however, is insufficient to deter defendants from

continued infringement of copyrighted music, and urge the Court

to award damages of $10,000 per infringement – for a total of

$60,000.

The Court agrees that damages in the amount of the ASCAP

license fee, alone, are insufficient to deter defendants from

additional copyright infringements. Indeed, after this lawsuit

was filed, plaintiffs had to amend their complaint to add an

additional claim of copyright infringement which occurred on

February 1, 2009 – five months after plaintiffs had instituted

this action. Accordingly, the Court concludes that damages in

the amount of $6,000 per infringement are warranted for the

unlawful performances of “Cha Cha Slide,” “Around the Way Girl,”

“In Da Club,” “Jamming,” and “Is This Love,” which occurred on

November 16, 2007, for a total of $30,000 (which is slightly more

than the total ASCAP license fee “saved”). The Court concludes

that damages in the amount of $10,000 are warranted for the

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unlawful performance of “Big Poppa,” which occurred several

months after this lawsuit was filed and therefore after

defendants were put on notice of their infringing activity.7

Defendants are therefore jointly and severally liable in the

amount of $40,000 in statutory damages.

2. Injunctive Relief

Plaintiffs also seek a permanent injunction prohibiting

defendants from publicly performing any of the copyrighted

musical compositions in the ASCAP repertory. Pls.’ Mot. at 19-

20. Pursuant to 17 U.S.C. § 502(a), the Court may grant

“temporary and final injunctions on such terms as it may deem

reasonable to prevent or restrain infringement of a copyright.”

17 U.S.C. § 502(a). Because plaintiffs have established that

defendants have repeatedly infringed upon their copyrights by

unlawfully performing their musical compositions, and in view of

defendants’ unwillingness to renew their ASCAP license despite

7
The Court also notes, however, that well before this action
was filed, defendants were informed by ASCAP that a performance
of any musical composition in the ASCAP repertory would
constitute an actionable infringement. See, e.g., Pls.’ Ex. E-6,
Letter from ASCAP to Michael Daley, dated September 5, 2006 (“I
am writing to inform you once again that your ASCAP license was
terminated for default on 08/15/2006. . . . We advised you of
your potential liability under the United States Copyright Law
for infringing performances of our members’ copyrighted musical
compositions and requested payment of past due fees so that your
license could remain in effect enabling you to perform our
members’ works lawfully. Despite our efforts, you remain
unlicensed.”).

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ASCAP’s repeated efforts, the Court concludes that a permanent

injunction is warranted. See, e.g., EMI April Music, Inc., 618

F. Supp. 2d at 511-12 (permanently enjoining defendants from

directly or indirectly infringing on the copyrights of all ASCAP

members); Joelsongs, 491 F. Supp. 2d at 1085-86 (same); Odnil

Music Ltd., 2006 WL 2545869, at *9 (same). Accordingly, the

Court hereby ORDERS that defendants and all persons acting under

the direction, control, permission, or authority of defendants

are permanently ENJOINED AND RESTRAINED from publicly performing,

or causing to be performed, or aiding and abetting the public

performance of, any and all music in the ASCAP repertory without

proper authorization.

3. Reasonable Costs and Attorney’s Fees

Finally, plaintiffs seek reasonable costs and attorney’s

fees in the amount of $74,712.22. See Pls.’ Mot. at 24-28; see

also Pls.’ Ex. L, Declaration of Benjamin L. Zelenko in Support

of Attorney’s Fees and Costs. 17 U.S.C. § 505 permits “the court

in its discretion” to award “the recovery of full costs by or

against any party” as well as “reasonable attorney’s fees to the

prevailing party.” 17 U.S.C. § 505. Considering all the facts

in this case, including plaintiffs’ interest in vindicating the

rights provided to them by Congress in the Copyright Act,

plaintiffs’ need to amend its complaint to add an additional

infringement, and the protracted nature of this litigation, the

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Court concludes that an award of costs and attorney’s fees is

warranted. Having carefully reviewed the Declaration of Mr.

Zelenko, the Court concludes that an award of attorney’s fees in

the amount of $69,145.00 and costs of $5,567.22 is reasonable.

Defendants are therefore jointly and severally liable in the

amount of $74,712.22 for attorney’s fees and costs.

IV. CONCLUSION

For the foregoing reasons, plaintiffs’ motion for summary

judgment is GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

SIGNED: Emmet G. Sullivan
United States District Court Judge
March 26, 2010

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