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May 28, 1985


The opinion of the court was delivered by: Plunkett, District Judge.


Broadcast Music, Inc. ("BMI") brought this action against Niro's Palace, Inc. ("Niro's"), seeking injunctive relief, statutory damages, and attorney's fees for Niro's alleged infringement of certain musical composition copyrights. Jurisdiction is based on 28 U.S.C. § 1338(a) and is not contested. Presently before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, BMI's motion is granted in part and denied in part, and Niro's motion is denied.

Factual Background

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 copyrights.

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 agreement.

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 that:

  [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 Aiken:

  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 ...

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