STEVENS, District Judge.
Plaintiffs brought this action for copyright infringement pursuant to the provisions of the Copyright Act, 17 U.S.C. § 101 et seq. Plaintiffs allege that on November 24, 1986, defendants made available for public performance plaintiffs' copyrighted musical compositions by means of an unlicensed coin-operated phonorecord player, or "jukebox." The court notes jurisdiction pursuant to 28 U.S.C. § 1338(a). The case is currently before the court on plaintiffs' motion for summary judgment, taken under advisement after an evidentiary hearing held to resolve questions concerning the level of defendants' culpability, the appropriate type of relief and the reasonableness of plaintiffs' attorneys' fees. Having now reviewed the parties' various submissions and the evidence adduced at the hearing, the court, for the following reasons, will grant plaintiffs' motion for summary judgment.
The court should first note that defendants have indicated that they would not contest that portion of plaintiffs' summary judgment motion relating to liability and statutory damages. Defendants' Response at 2. Rather, defendants have argued that they are "innocent infringers," and that consequently, the court should award minimum statutory damages and no attorney's fees. To allow the defendants the opportunity to present any potentially exculpatory evidence relating to such issues, the court ordered a hearing to take oral testimony on plaintiffs' motion, pursuant to Fed.R.Civ.P. 43(e). See State of Utah v. Marsh, 740 F.2d 799, 801 n. 2 (10th Cir.1984) (rule 43 authorizes use of oral testimony in conjunction with summary judgment motions); see also 10A Wright, Miller & Kane, Federal Practice and Procedure § 2723 at 61 (2d ed. 1983). Accordingly, as is the practice when ruling on a motion for summary judgment, the court will view the facts in the light most favorable to the nonmoving party, who must be given the benefit of all reasonable inferences that may be made from the record. Adickes v. S.H. Kress &
Each plaintiff in this case is a music publisher and a member of the American Society of Composers, Authors and Publishers (ASCAP). Plaintiffs have granted ASCAP the nonexclusive right to license public performances of their copyrighted musical compositions. At all relevant times proximate to the alleged infringements, plaintiff Little Mole Music owned the copyright to the composition "These Dreams"; plaintiff Ric Ocasek owned the copyright to the composition "Drive"; plaintiff Bruce Springsteen owned the copyright works "Cover Me," "Dancing in the Dark" and "Pink Cadillac"; plaintiff Hulex Music owned the copyright to "The Heart of Rock and Roll"; plaintiff Bungalow Music owned the copyright to "Addicted to Love"; plaintiff Controversy Music owned the copyright to "When Doves Cry"; plaintiff Brockman Music owned the copyright to "Stuck on You"; and plaintiff T.B. Harms Company owned the copyright to the composition "That's Life." Plaintiffs have asserted their rights in these ten musical compositions by providing certificates of copyright registration (Plaintiffs' Exhibits 6-15), and defendants do not dispute plaintiffs' ownership of these works. See 17 U.S.C. § 410(c).
In early November of 1986, defendants Charles Bengimina, John Bengimina and Thomas Bengimina, as partners in the Bee Gee Management Company ("B & G"), took over the management of all jukeboxes and vending machines owned by Comp-Tech Vending, Inc.
The unauthorized public performances of plaintiffs' copyrighted material took place on November 24, 1986, on an unlicensed jukebox located at Leo's Pizza, 6400 Johnson Drive, Mission, Kansas.
There is no dispute that the machine at Leo's was owned by Comp-Tech and was intended to be managed by B & G. Nor do defendants deny that the machine was unlicensed, in violation of 17 U.S.C. § 116. In fact, plaintiffs have established that none
For plaintiffs to prevail in a copyright infringement action, they must establish: 1) the originality and authorship of the compositions; 2) compliance with the formalities of the Copyright Act; 3) ownership of the copyrights; and 4) unauthorized public performance of the copyrighted compositions. Almo Music Corp. v. 77 East Adams, Inc., 647 F.Supp. 123, 124 (N.D.Ill. 1986); Sailor Music v. Mai Kai of Concord, Inc., 640 F.Supp. 629, 632 (D.N.H. 1986); Bourne Company v. Khalil, 611 F.Supp. 269, 270 (E.D.Mich.1986). Plaintiffs have submitted the appropriate copyright registration documents for each of the ten compositions at issue, which is sufficient to raise a presumption in favor of the first three elements listed above. See 17 U.S.C. § 410(c); Sandwiches, Inc. v. Wendy's Intern., Inc., 654 F.Supp. 1066, 1071 (E.D.Wisc.1987); appeal dismissed, 822 F.2d 707 (7th Cir.1987); Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 913 (D.Conn.1980). Although this presumption is rebuttable, Sandwiches, 654 F.Supp. at 1071-72, defendants' failure to dispute or deny plaintiffs' prima facie case conclusively establishes authorship, statutory compliance and ownership as a predicate to recovery for infringement. See, e.g., Sailor Music, 640 F.Supp. at 632-33.
Plaintiffs have also established the remaining element of a prima facie case of copyright infringement. The uncontroverted affidavits of Jerry L. Jones and Debra Jones show that public performances of the ten copyrighted compositions took place at Leo's Pizza on November 24, 1986. Such performances were unauthorized and without permission because no license was ever obtained and affixed to the jukebox as required by 17 U.S.C. § 116.
A. "Innocent Infringement"
Defendants do not deny that unauthorized public performances took place, but instead maintain that they were "innocent infringers," having no reason to believe that their actions constituted a violation of the Copyright Act. The court first notes that motive or intent is irrelevant to establishing liability, for "even an innocent infringer is liable for infringement ... intent or knowledge is not an element of infringement." Fitzgerald Pub. Co., Inc.
In the present case, the court is convinced that defendants cannot be characterized as innocent infringers. By their own admission, Comp-Tech's business was in shambles when they assumed control. None of the machines which they inventoried had the required licenses affixed. This should have given defendants a clear indication that something was amiss, that as a result, they might "somehow infringe upon the rights of another party." Id. Indeed, given the fact that defendants were experienced operators, in the jukebox business since at least the late 1970s, it strains credibility to conclude that they failed to even suspect that Comp-Tech had not obtained licenses for 1986.
B. Type of Liability
Liability for copyright infringement may be either direct, see, e.g., RCA Records v. All-Fast Systems, Inc., 594 F.Supp. 335, 337 (S.D.N.Y.1984), or vicarious. See Sony Corp. v. Universal Studios, 464 U.S. 417, 436, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984); Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.1963). Personal participation in the infringing activity will result in direct liability. Southern Bell Telephone and Telegraph Co. v. Associated Telephone Directory Company, 756 F.2d 801, 811 (11th Cir.1985). Vicarious liability is predicated on the right and ability of the defendant to supervise the infringing activity and the defendant's obvious and direct financial interest in such an activity. RCA/Ariola International, Inc. v. Grayston Co., 845 F.2d 773, 781 (8th Cir.1988). In either context, infringement can result in personal
In the present case, defendants, as partners in B & G, are each directly liable for failing to obtain the compulsory license for the machine on which the infringing public performances occurred. Because the machine was owned by Comp-Tech and was covered by the B & G management agreement, there is no question that defendants were jukebox "operators" for purposes of section 116.
Direct liability notwithstanding, the court alternatively finds defendants individually liable on a vicarious basis. They were unquestionably the primary individuals having the "right and ability" to license the machine. See RCA/Ariola, 845 F.2d at 781. Moreover, each defendant had a direct financial interest as a partner in an enterprise which encompassed the exploitation of copyrighted material. Id.; see also Warner Brothers, Inc. v. O'Keefe, 468 F.Supp. 16, 20 (S.D.Iowa 1978). Besides their ordinary partnership draws, if the defendants were successful in managing Comp-Tech's vending business, B & G was eventually to acquire the entire Kansas City operation. Clearly, the use and misuse of such machines is fundamentally motivated by a profit making intent. This is all that is required for vicarious copyright infringement.
In summary, plaintiffs have established that the B & G machine at Leo's was unlicensed, that ten separate infringements took place at that location on November 24, 1986, and that such infringements were not "innocent." Thus, plaintiffs have submitted a prima facie case on each claim. Defendants have failed to controvert any material fact, and in light of the testimony adduced at the evidentiary hearing, the court is satisfied that no genuine issue remains to be tried. See Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 912-13 (D.Conn.1980); Edwin H. Morris & Co. v. Burton, 201 F.Supp. 36, 39 (E.D.La.1961).
Under the Copyright Act, a plaintiff may elect to recover an award of statutory damages instead of actual damages and lost profits. 17 U.S.C. § 504(c)(1); Harris v. Emus Records Corp., 734 F.2d 1329 (9th Cir.1984). For each non-innocent infringement, the court must award "not less than $250 or more than $10,000 as the court considers just." 17 U.S.C. § 504(c)(1). "Within these statutory limits, the assessment of damages lies within the court's sound discretion and sense of justice." Halnat Publishing Company v. L.A.P.A., Inc., 669 F.Supp. 933, 937 (D.Minn.1987). In the present case, after considering all the evidence presented, the court finds that damages should be assessed at $1,000 per infringement, for a total damages award of $10,000. The court believes this award will adequately compensate plaintiffs as well as punish the defendants and ultimately, it is hoped, deter future wrongful conduct. See Music City Music v. Alfa Foods, Ltd., 616 F.Supp. 1001, 1003 (E.D.Va.1985).
D. Costs and Attorneys' Fees
Under section 505 of the Copyright Act, an "award of full costs is mandatory ...," Boz Scaggs Music, 491 F.Supp. at 915, and therefore, costs totaling $1,205.60 will be allowed to plaintiffs. In contrast, an award of attorneys' fees under section 505 is within the sound discretion of the trial court. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 122 (8th Cir.1987). Plaintiffs have submitted affidavits establishing that they have incurred attorneys' fees in the amount of $17,040.75, representing a total of 231.25 hours billed among several different attorneys, whose rates range from $75 to $115 per hour. Defendants do not challenge the substance of plaintiffs' fees affidavits, the hours billed, or the rates charged. Rather, defendants argue that the infringements were not willful, thus justifying a denial of attorneys' fees. The court disagrees.
The court first notes that an award of attorneys' fees under the Copyright Act is not conditioned on a showing of bad faith or willful violation. RCA/Ariola Intern., Inc. v. Thomas & Grayston Co., 845 F.2d 773, 780 (8th Cir.1988); see also Casella v. Morris, 820 F.2d 362 (11th Cir.1987). Moreover, the court has already determined that defendants are not innocent infringers, nor was their infringement based on a reasonable reliance on a position taken with respect to a novel or complex question of law — they simply failed to comply with the licensing requirements. There are consequently no factors which would justify denying plaintiffs a fee award. "Although attorney's fees are awarded in the trial court's discretion, they are the rule rather than the exception and should be awarded routinely." Micromanipulator Co. v. Bough, 779 F.2d 255, 259 (5th Cir.1985).
Defendants also argue that a fee award in excess of the statutory damage assessment would be unreasonable. However, it is well-established that a fee award need not be equal or less than the statutory damages amount. See M.S.R. Imports, Inc. v. R.E. Greenspan Co., Inc., 574 F.Supp. 31, 36 (E.D.Pa.1983), aff'd, 732 F.2d 146 (3d Cir.1984) (no correlation between damage awards and attorneys' fees); see also International Korwin Corp. v. Kowalczyk, 665 F.Supp. 652 (N.D.Ill.1987), aff'd, 855 F.2d 375 (7th Cir.1988) ($21,502.75 fee award and a $10,500 statutory damages award); Broadcast Music, Inc. v. Behulak, 651 F.Supp. 57 (M.D.Fla.1986) ($41,887.50 in attorneys' fees and only $12,000 awarded in statutory damages). Such cases are in keeping with the policy behind the Copyright Act's fee shifting provision, for often the actual value of the recovery in copyright infringement actions may not be commensurate with the attorneys' fees incurred to obtain the recovery. Without the fee shifting provision, copyright owners would doubtless be exceedingly reluctant to enforce their rights in such cases.
While the basic facts of this case are not unduly complex, plaintiffs' counsel was nevertheless required to undertake comparatively extensive discovery to sort through B & G's chaotic business affairs. Plaintiffs' counsel have demonstrated commendable skill and diligence in pursuing this action and have charged fees which are customary for firms of the same size in the Kansas City area. The court has closely examined the affidavit of plaintiffs' counsel and finds no charges which are excessive, no inordinate amount of time spent on any task, and no services which could be deemed unnecessary or superfluous. In short, under the circumstances, the court finds no reason to adjust the lodestar amount of $17,040.75. Such an award is reasonable, given the length of time taken to litigate the case, the nature of the issues
For the reasons discussed above, it is
ORDERED that plaintiffs' motion for summary judgment is granted. It is further
ORDERED that defendants, their officers, agents, servants and employees are hereby enjoined and restrained from publicly performing, without appropriate permission, the ten compositions involved in this action. It is further
ORDERED that in satisfaction of this judgment, plaintiffs are hereby awarded $10,000 in statutory damages ($1,000 for ten violations), for which defendants are to be held jointly and severally liable. It is further
ORDERED that plaintiffs are awarded costs and attorneys' fees incurred in prosecuting this action, in the amount of $18,246.35.