Broadcast Music, Inc. v. Ken V, Inc.

159 F. Supp. 3d 981, 2016 U.S. Dist. LEXIS 10674, 2016 WL 362513
CourtDistrict Court, E.D. Missouri
DecidedJanuary 29, 2016
DocketCase No. 4:14CV1647 NCC
StatusPublished

This text of 159 F. Supp. 3d 981 (Broadcast Music, Inc. v. Ken V, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broadcast Music, Inc. v. Ken V, Inc., 159 F. Supp. 3d 981, 2016 U.S. Dist. LEXIS 10674, 2016 WL 362513 (E.D. Mo. 2016).

Opinion

MEMORANDUM AND ORDER

Noelle C. Collins, ÚNITED STATES MAGISTRATE JUDGE

This matter is before the court pursuant to Plaintiffs’ Motion for Summary Judgment. (Doc. 45). Defendants have filed a Memorandum of Law in Opposition to Plaintiffs’ Motion for Summary Judgment. (Doc. 52). Plaintiffs have filed a Reply. (Doc. 53). Also before the court is Plaintiffs’ Motion to Strike and Exclude, in part, the Affidavit of Defendant Ken Vaughn. (Doe. 54). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 35).

I.

BACKGROUND and UNDISPUTED FACTS1

This is an action for copyright infringement brought by Plaintiffs Broadcast Music, Inc. and individual copyright owners (collectively referred to as BMI) pursuant to 17 U.S.C. §§ 101 et. seq. (the Copyright Act), against Defendants Ken V Inc., d/b/a Kenny’s Bar & Grill, and Ken Vaughn. Plaintiffs allege twelve claims of willful copyright infringement based upon Defendants’ unauthorized performances of musical compositions from the BMI copyrighted repertoire at Kenny’s Bar & Grill in Barnhart, Missouri. Plaintiffs assert that the specific acts of copyright infringement alleged in the Complaint have caused them great and incalculable damage and, that by continuing to provide unauthorized public performances of works in the BMI repertoire, Defendants threaten to continue committing copyright infringement. Plaintiffs ask the court to enjoin Defendants from infringing and ask for statutory damages, reasonable attorney’s fees, and costs. (Doc. 1).

BMI is a performing rights society which acquires non-exclusive public performance rights from copyright owners, including music publishing companies and independent composers. The other named Plaintiffs are the copyright owners of the musical compositions which are the subject of this action. Through agreements with copyright owners, BMI has acquired nonexclusive public performance rights from each of the other Plaintiffs in this cause of action.

Ken V, Inc., owns and operates Kenny’s Bar & Grill in Barnhart, Missouri, and Ken Vaughn is the sole owner of Ken V, Inc. Kenny’s Bar & Grill regularly features performances of live and recorded music. To the extent Plaintiffs contend that Defendant Ken Vaughn operates Kenny’s Bar & Grill, Defendants deny that Ken Vaughn operates that establishment, given that many aspects of its operation are handled by others. (Doc. 47 (Plaintiffs’ Statement of Undisputed Facts (PSUF)) ¶ 10; Doc. 51 (Def. Resp. to PSUF) ¶ 10).

Plaintiffs contend that between February 2012 and November 2013, BMI repeatedly informed Defendants of the need to obtain permission for public performances of copyrighted music, and that BMI offered to enter into a license agreement. (Doc. 47 ¶¶ 12-13). Specifically, among other things, Plaintiffs submitted letters from BMI to Vaughn, dated February 15, April 2, May 16, June 15, July 30, September 13, and October 12 and 31, 2012, in which letters BMI offered to grant Defendants a license for songs from the BMI repertoire and/or explained federal copyright law. (Doc. 47-9 at 1-9). Plaintiffs have addition[984]*984ally submitted a December 3, 2012 letter, addressed to Vaughn, in which letter BMI stated that the public performance of BMI music without the proper authorization constituted copyright infringement and that such infringement might result in damages under federal copyright law. (Doc. 47-9 at 10). Plaintiffs have also submitted Cease and Desist Notices, dated December 27, 2012, and January 11, 2013, addressed to Vaughn, along with FedEx receipts, indicating their delivery. (Doc. 47-9 at 12, 14). Further, Plaintiffs have submitted letters, dated January 14 and 18, April 18, May 1, June 14 and 26, August 26, and October 10 and 24, 2013, addressed to Vaughn regarding licensing BMI music, copyright infringement by Defendants, and the cease and desist notices sent by BMI. (Doc. 47-9 at 18-26). As set forth below, BMI’s records reflect that BMI sent a representative to Kenny’s Bar & Grill on one occasion, October 12, 2013, and, on 75 occasions, made telephone calls during which BMI’s licensing personnel spoke to persons associated with the operation of Kenny’s Bar & Grill. (Doc. 47-7, ¶ 7).

On the evening of October 12, 2013, and the early morning of October 13, 2013, a BMI investigator made recordings, at Kenny’s Bar & Grill, of public performances of twelve songs which are BMI-licensed music; at those times, Kenny’s Bar & Grill was open to the public; at those times Defendants operated and maintained Kenny’s Bar & Grill, had a direct financial interest in it and had the right and ability to direct, control, and or supervise the activities of Kenny’s Bar & Grill2; at those times, musical compositions were publicly performed at Kenny’s Bar & Grill; and, at those times, Defendants were not licensed by any of the Plaintiffs to publicly perform any of their musical compositions. (Doc. 47 ¶¶ 15-20; Doc. 51 ¶¶ 15-20).

Plaintiffs have provided a FedEx receipt for a letter dated November 13, 2013, addressed to Vaughn, from a representative of BMI, which letter notified Vaughn that infringement of BMI-licensed music recently occurred at his establishment; that BMI “remain[ed] ready to furnish [Vaughn] with the necessary license; and that, in order to resolve the matter, Vaughn should sign the attached License Agreement, and pay the appropriate license fees and BMI’s music researcher costs”. The letter stated that the license fee for February 1, 2012, through January 31, 2013, was $2,790; that the license fee for February 1, 2013, through February 31, 2014, was $2,880; and that the music researcher costs were $218.70, for a total of $5,888.70. (Doc. 47-9 at 29).

Defendants do not deny that Plaintiffs sent the above described letters and notices. Moreover, Vaughn has no evidence to controvert that these communications from Plaintiffs were received by Defendants. (Doc. 47-12, ¶¶ 44-69). Vaughn, however, in his affidavit, attests to the fact that he never received letters or phone calls from BMI notifying him of the need to obtain permission for public performances of copyrighted materials; that he did not receive any notices from BMI to cease and desist from playing music licensed by BMI; that he did not know, until the commencement of this litigation, that Ken V, Inc., needed to have a license for a band to perform non-original music or have a D. J. play such music; and that, “while [he] gave it almost no thought,” prior to the commencement of this litigation, he “believed [985]*985that it was the responsibility of the band or D. J. to obtain permission to play” licensed music. (Doc. 51-1 (Vaughn Aff.) ¶¶ 5-7, 10). Vaughn does not address Plaintiffs’ claim that they sent a representative to Kenny’s Bar & Grill.

Additionally, Vaughn has attested that, on or about October 13, 2013, when the band Hush played the music which is the subject matter of this case, at Kenny’s Bar & Grill, Defendants received no money from the audience other than what they received from the food and drink that was served that night, and that he intends to obtain a BMI license and will refrain from playing BMI-licensed songs until he obtains a license. (Doc. 51-1 ¶¶ 8,11). .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. W. T. Grant Co.
345 U.S. 629 (Supreme Court, 1953)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Fogerty v. Fantasy, Inc.
510 U.S. 517 (Supreme Court, 1994)
Collins Court Music, Inc. v. Pulley
704 F. Supp. 963 (W.D. Missouri, 1988)
Broadcast Music, Inc. v. DeGallo, Inc.
872 F. Supp. 167 (D. New Jersey, 1995)
Broadcast Music, Inc. v. Niro's Palace, Inc.
619 F. Supp. 958 (N.D. Illinois, 1985)
Music City Music v. Alfa Foods, Ltd.
616 F. Supp. 1001 (E.D. Virginia, 1985)
Cross Keys Pub. Co. v. LL Bar T Land & Cattle Co.
887 F. Supp. 219 (E.D. Missouri, 1995)
Marvin Music Co. v. BHC Ltd. Partnership
830 F. Supp. 651 (D. Massachusetts, 1993)
Milene Music, Inc. v. Gotauco
551 F. Supp. 1288 (D. Rhode Island, 1982)
AgriStor Leasing v. Farrow
826 F.2d 732 (Eighth Circuit, 1987)
Hartman v. Hallmark Cards, Inc.
833 F.2d 117 (Eighth Circuit, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
159 F. Supp. 3d 981, 2016 U.S. Dist. LEXIS 10674, 2016 WL 362513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broadcast-music-inc-v-ken-v-inc-moed-2016.