United States District Court, N.D. Illinois, Eastern Division
JOHN F. GRADY, District Judge.
Before the court are plaintiffs' motions for summary judgment and defendant Michael Rossi's cross-motion for summary judgment. For the reasons discussed below, plaintiffs' motions are granted as to defendants M.R.T.P., Inc. and Anthony Prisco and denied as to defendant Rossi, and Rossi's motion is granted.
Plaintiff Broadcast Music, Inc. ("BMI") is a nonprofit organization that acquires non-exclusive public performance rights from copyright owners, such as music publishing companies and composers, and then licenses the public performances of the copyrighted musical works. According to BMI, it has been granted the right to license the public performance rights in approximately 7.5 million copyrighted musical works. The other plaintiffs are the copyright owners of the eight songs involved in this case and have granted BMI the right to issue public performance licenses for their songs. Defendants M.R.T.P., Inc. ("MRTP") and Anthony Prisco operate Prisco's Eleven West ("Prisco's"), a bar located in South Chicago Heights, Illinois. Plaintiffs allege that defendant Michael Rossi was also affiliated with Prisco's at the times relevant to the complaint.
Between November 16, 2010, and June 21, 2012, BMI sent Prisco several letters (to the establishment's address) and two e-mails describing BMI's vast repertoire and explaining that a license must be obtained in order to publicly perform BMI's musical works at the establishment. The letters repeatedly urged Prisco to obtain a license in order to avoid infringing copyrights, and they included a proposed license agreement, with a license-fee schedule, and/or provided detailed instructions on how to apply for a license online. (Decl. of Lawrence E. Stevens, Ex. B.) There was no response to the letters. On September 27, 2011, BMI sent Prisco a letter, via FedEx, for which Prisco signed, instructing him to cease the public performance of BMI-licensed music. An additional letter was sent on January 25, 2012, making another cease-and-desist request. Prisco did not obtain a license.
Public performances of BMI-licensed music at Prisco's occurred after Prisco received this correspondence. On March 7, 2012, BMI's investigator visited Prisco's on a "karaoke night" and observed the performance of songs owned by the plaintiffs. The investigator made a digital recording of, and a written report about, the music that was performed by means of the karaoke machine. The report includes information about Prisco's-its location, the layout and appearance of the establishment, details about the music equipment that was being used-as well as details about the songs that were being performed, to the extent that the investigator knew them. Some of the remaining songs that were performed were identified from the digital recording through the use of music-recognition software and other BMI employees. (Stevens Decl., Ex. A.)
After the investigator's visit to Prisco's, BMI sent Prisco a letter advising him that its investigator had witnessed the recent public performance of BMI-licensed music at the establishment; BMI again requested that Prisco obtain a license. There was still no response, so BMI filed this lawsuit. The complaint alleges eight claims of willful copyright infringement, one for each of the eight BMI-represented copyrighted songs that were performed at Prisco's on March 7, 2012. Plaintiffs seek statutory damages for each act of infringement, an order permanently enjoining defendants from further infringement, and an award of reasonable attorneys' fees and costs.
The plaintiffs move for entry of summary judgment against each defendant. Defendant Rossi cross-moves for entry of summary judgment against plaintiffs.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Pitasi v. Gartner Group, Inc. , 184 F.3d 709, 714 (7th Cir. 1999). "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "Summary judgment should be denied if the dispute is genuine': if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt. Co. , 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). The court will enter summary judgment against a party who does not "come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question." McGrath v. Gillis , 44 F.3d 567, 569 (7th Cir. 1995).
A. Summary Judgment Against MTRP and Prisco's
The Copyright Act grants copyright owners certain exclusive rights in their copyrighted musical works, including the exclusive right to control the public performance of their works. 17 U.S.C. § 106(4); ProCD, Inc. v. Zeidenberg , 86 F.3d 1447, 1454 (7th Cir. 1996) ("Copyright law forbids duplication, public performance, and so on, unless the person wishing to copy or perform the work gets permission...."). A plaintiff claiming copyright infringement must establish two elements: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Janky v. Lake County Convention & Visitors Bureau , 576 F.3d 356, 361 (7th Cir. 2009) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361 (1991)). Copying occurs when one publicly performs a work without the copyright owner's authorization. Janky , 576 F.3d at 361.
The first element is undisputed. Attached to the complaint is a schedule of the eight songs at issue, which includes the publishers, the dates of copyright registration, and the registration numbers. BMI has also submitted the Declaration of Hope M. Lloyd, its Assistant Vice President, Legal; attached to Ms. Lloyd's declaration are the copyright registration certificates for each of the eight songs and subsequent documentation demonstrating their chain of ownership. (Decl. of Hope M. Lloyd, Ex. A.) Defendants do not dispute that the asserted copyrights contain the requisite elements of originality, that they were properly registered, or that plaintiffs have proprietary rights in the works. (Defs.' Resp. to Pls.' Local Rule 56.1 Statement ¶ 14.)
The second element is effectively undisputed by MRTP and Prisco. We say "effectively" because although these two defendants have no defense and have failed to come forward with any evidence that would permit a jury to find in their favor, they have refused to expressly concede liability. Instead, they have filed a response brief, which is devoid of any legal authority whatsoever, requesting that "the relief sought by the Plaintiffs be denied in its entirety." (Defs.' Resp. at 4.) As to MRTP and Prisco, that request is baseless. Plaintiffs have submitted evidence that the songs were played at Prisco's without authorization on March 7, 2012. BMI's investigator, Sarah Kaminsky, made a certified report regarding her March 7, 2012 visit to Prisco's, which included her observation that one of the eight songs at issue, "Round Here, " was performed that night. BMI has also submitted Kaminsky's separate certification that she made a digital recording of the music that was performed. In addition, BMI has submitted the certification of Lisa Brammer, an Associate Director of Performance Identification for BMI, who explains the music-recognition software that BMI used to identify most of the songs that Kaminsky recorded, as well as the certification of Joannah Carr, a BMI employee who reviewed Kaminsky's report and recording and identified the songs and/or ...