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Kinsey v. Jambow, Ltd.

United States District Court, N.D. Illinois, Eastern Division

December 4, 2014

DONALD EDWARD KINSEY and RALPH EDWARD KINSEY, Plaintiffs,
v.
JAMBOW, LTD. and CAYMAN MUSIC, LTD., Defendants

Page 709

For Donald Edward Kinsey, Ralph Edward Kinsey, Plaintiffs: John G. Bisbikis, LEAD ATTORNEY, Brent Allen Hawkins, McDermott, Will & Emery LLP (Chicago), Chicago, IL; Natalie A Bennett, Mcdermott Will & Emery Llp, Chicago, IL; Sean Adam O'donnell, Mcdermott Will & Emery, Washington, DC.

Page 710

MEMORANDUM OPINION AND ORDER

Amy J. St. Eve, United States District Judge.

On October 27, 2014, the court entered default against the defendants, Jambow, Ltd. (" Jambow" ) and Cayman Music, Ltd. (" Cayman" ), on the plaintiffs' complaint for infringement of copyright in three musical compositions. Plaintiffs' request for entry of default judgment is now before the court.

Pursuant to Federal Rule of Civil Procedure 55, the court may enter a judgment by default when the non-moving party has " failed to plead or otherwise defend" itself. The decision to grant or deny default judgment lies within the district court's discretion and is reviewed only for an abuse of discretion. Domanus v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014) (citing Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1322 (7th Cir. 1983)). " A default judgment establishes, as a matter of law, that defendants are liable to plaintiff on each cause of action alleged in the complaint." Wehrs v. Wells, 688 F.3d 886, 892 (7th Cir. 2012). " Upon default, the well-pled allegations of the complaint relating to liability are taken as true, but those relating to the amount of damages suffered ordinarily are not. Thus, damages must be proved unless they are liquidated or capable of calculation." Id. (citations, internal quotation marks, and brackets omitted).

I. Liability

Among the exclusive rights set forth in the Copyright Act are the rights to reproduce and distribute copies of the copyrighted work. HyperQuest, Inc. v. N'Site Solutions, Inc., 632 F.3d 377, 382 (7th Cir. 2011) (citing 17 U.S.C. § 106).

Page 711

Copyright infringement occurs when anyone violates the exclusive rights of a copyright owner. 17 U.S.C. § 501(a). To prove copyright infringement, a plaintiff must show (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).

The complaint sets out the following facts, which the court deems admitted due to the defendants' default. Plaintiffs, Donald Edward Kinsey and Ralph Edward Kinsey, are Chicago-area musicians and songwriters. They are the sole owners of registered copyrights in three musical compositions: " Reggae the Night Away," " Live Love Rejoice," and " Where You Gonna Run" (the " Kinsey Works" or the " Works" ).[1] Plaintiffs allege that the defendants have wrongfully purported to license to third parties " Reggae the Night Away" and " Live Love Rejoice" through Jambow and its website, www.jambow.com, and wrongfully purported to license to third parties " Where You Gonna Run" through a non-party entity called PeerMusic on its website, AllMusic. (Compl. ¶ ¶ 17, 19-20.) Plaintiffs further allege that Cayman falsely represented to performance-rights organizations that it owns the Kinsey Works and that the defendants falsely informed PeerMusic that they own the copyrights to the Kinsey Works. (Compl. ¶ ¶ 16, 19.) Plaintiffs allege that the defendants have violated their exclusive rights in the Kinsey Works by wrongfully reproducing and distributing the Works. Accordingly, the allegations of the complaint, taken as true, establish that the defendants have infringed the three copyrights owned by the plaintiffs.

II. Requested Relief

A. Statutory Damages

The Copyright Act provides that an aggrieved copyright owner may recover statutory damages, instead of actual damages, of " a sum of not less than $750 or more than $30,000 as the court considers just" for each work infringed. 17 U.S.C. ยง 504(c)(1). The statute also provides that where the plaintiff proves that the defendant committed willful infringement, the court may increase the award of statutory damages to a sum of not more than $150,000, and if the court finds that the infringer was not aware and had no reason to believe that his acts ...


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