The opinion of the court was delivered by: Plunkett, District Judge.
MEMORANDUM OPINION AND ORDER
The following facts are not in dispute. BMI purports to be
the world's largest "performing rights organization" that
licenses nondramatical musical works on behalf of copyright
owners under 17 U.S.C. § 110 et seq. Under this arrangement,
BMI pays a fee to the copyright owner, charges a fee for
nonexclusive licenses to perform copyrighted musical
compositions, and enforces infringements of BMI held
Niro's owns and operates the Palace Bowl, a bowling alley
and tavern. It serves food and drink to the public, and
provides live entertainment including performances of musical
compositions. In early December 1982, BMI learned that live
music was being performed on Niro's premises despite the fact
that Niro's did not have a licensing agreement with BMI. On
December 10, 1982, BMI sent a letter to Niro's informing it
that copyrighted music could not be performed on its premises
without prior consent of the copyright owner or a BMI license.
Enclosed with the letter was a BMI "blanket" license
Sometime in late December 1982 or early January 1983, a BMI
representative telephoned Niro's and advised Jack Nickol
("Nickol"), a principal of Niro's, that Niro's was violating
the Copyright Act of 1976 by allowing copyrighted songs to be
performed on Niro's premises without first obtaining a BMI
license. Niro's nonetheless refused to enter into a licensing
agreement. Subsequently, BMI sent a letter to Niro's again
informing it that it had to obtain a BMI license in order to
have copyrighted songs played on its premises. Niro's did not
respond to this letter. In late January 1983, BMI sent a
"mailgram" to Niro's demanding that it stop the playing of BMI
music on its premises. Niro's rebuffed all of these warnings
to stop infringing copyrights held by BMI.
BMI alleges that on March 18, 1983, a BMI investigator and
his wife observed the live performance of thirty-two musical
works on Niro's premises. Of these thirty-two musical works,
BMI alleges that fourteen involve copyrights held by BMI.
Subsequently, BMI contacted Niro's on two occasions, again
warning Niro's that performance of copyrighted music without
consent or a license constituted copyright infringement. No
license agreement was ever executed.
Rule 56(c) of the Federal Rules of Civil Procedure provides
[summary judgment] shall be rendered forthwith if
the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is
no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law.
Niro's attempts to raise several factual issues so as to stave
off summary judgment. As discussed below, its attempts are
entirely lacking in merit. (On the other hand, Niro's contends
that one or more of its affirmative defenses has been
established as a matter of law, and that it is therefore
entitled to summary judgment.)
I. Copyright Infringement
In order for BMI to establish copyright infringement, it
must prove (1) ownership of a valid copyright, and (2)
"copying" by defendant. E.g., Atari, Inc. v. North American
Philips Consumer Electronics Corporation, 672 F.2d 607, 614
(7th Cir. 1982); 3 M. Nimmer, Nimmer On Copyright § 13.01, at
13-3 (2d ed. 1984). The first element has been established by
the filing of BMI's registration certificates and the affidavit
of Theodore Zavin ("Zavin Aff."), which constitute a "prima
facie showing of proprietorship."
Broadcast Music, Inc. v. Moor-Law, Inc., 484 F. Supp. 357,
362-63 (D.Del. 1980).
With respect to the second element, "copying," Niro's makes
a tortured attempt to raise a material issue of fact. Copying
can take many forms. The most straightforward type of copying
is the public performance of another's musical composition.
Twentieth Century Music Corporation v. Aiken, 422 U.S. 151,
157, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). Moreover, not
only is the peformer liable for infringement, but so is anyone
who sponsors the performance. As the Supreme Court found in
An orchestra or individual instrumentalist or
singer who performs a copyrighted musical
composition in . . . a public place without a
license is . . . clearly an infringer under the
statute [the Copyright Act of 1909]. The
entrepreneur who sponsors such a public ...