Broadcast Music, Inc. v. Prana Hospitality, Inc.

158 F. Supp. 3d 184, 2016 U.S. Dist. LEXIS 7270, 2016 WL 280317
District Court, S.D. New York·Decided January 21, 2016·No. 15 Civ. 1987 (PAE)·Published·Cited by 57 cases

Opinion

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiffs Broadcast Music, Inc. (“BMI”), MJ Publishing Trust, Beechwood Music Corporation, and Sony/ATV Latin Music Publishing LLC bring this action for copyright infringement against defendants Pra-na Hospitality, Inc. (“Prana”), Rajiv Shar-ma, and Payal Sharma. Plaintiffs claim that defendants, the owners of a New York City restaurant/bar, violated the Copyright Act, 17 U.S.C. §§ 101 et seq., and willfully infringed their copyrights, by publicly performing three of plaintiffs’ copyrighted musical compositions without authorization.

Plaintiffs now move for summary judgment on their claims, and seek an injunction prohibiting defendants from further infringing any copyrighted musical compositions licensed by BMI. Plaintiffs also request an award of statutory damages under 17 U.S.C. § 504(c), as well as attorneys’ fees and costs under 17 U.S.C. § 505.

For the reasons that follow, plaintiffs’ motion for summary judgment is granted. The Court also grants plaintiffs’ motions for an injunction, attorneys’ fees, and costs, and awards statutory damages.

I. Background

A. Facts1

BMI is a performing rights society that licenses the right to publicly perform a [189]*189repertoire of 10.5 million copyrighted musical works. Lloyd Decl. ¶¶ 3, 5. BMI acquires non-exclusive public performance rights through agreements with copyright owners, such as composers and music publishing companies. Id. ¶2. BMI, in turn, issues “blanket license agreements” to music users, such as broadcasters and the owners and operators of restaurants and night clubs, which permit them to host public performances of any of the works in BMI’s repertoire. Id.

The other plaintiffs are the copyright owners of the musical compositions that are the subject of this lawsuit: “Suave-mente,” “Billie Jean,” and “We Will Rock You.” PI. 56.1, ¶¶ 17-19. BMI has acquired public performance rights from these plaintiffs for these songs. Id. ¶20.

Prana is a New York corporation that operates and maintains an establishment, Pranna, located at 79 Madison Avenue in New York City, which serves as a restaurant, bar, and lounge. PI. 56.1, ¶ 3. At all relevant times, Rajiv Sharma has been an owner and the Chief Executive Officer of Prana, id. ¶ 9, and Payal Sharma has been an owner and officer of Prana, id. ¶ 10.

At some point before September 2012, BMI learned that Pranna was hosting pub-lie musical performances by DJs without a license from BMI or permission from the copyright owners whose works were being performed. Mullaney Decl. ¶3. On September 13, 2012, BMI sent a letter to Pranna advising defendants of their obligations under the Copyright Act, offering to enter into a blanket license agreement with- them, and enclosing a license agreement and fee schedule. Id. BMI received no response. Id. In October 2012, BMI sent defendants additional letters of the same nature.' Id. ¶4. On November 19, 2012, BMI received an email from Pran-na’s business manager, Grace Tayeh, stating that Pranna “already [had] licensing through the music provider.”- Id. ¶ 5; id. Ex. A. A, BMI representative replied to Tayeh later that day, informing her- that any license possessed by Pranna did not cover DJ performances. Id. ¶ 5; id. Ex. D, at 8.

Between September 2012 and October 2014, BMI sent defendants a total of 48 letters via email, FedEx, and first class mail, initially offering to enter into a license agreement with defendants, and later directing defendants to cease and desist from further public performances of BMI-licensed music. PI. 56.1, ¶4.2 Addi[190]*190tionally, BMI called Pranna 42 times, and BMI licensing personnel visited Pranna four times and spoke to persons associated with Pranna1 s operations on multiple occasions. Id. ¶ 5. Despite these overtures, defendants did not enter into a license with BMI or the other plaintiffs. Id. ¶ 6.

On May 17, 2014 and October 11, 20143, BMI sent music investigator Timothy Braunscheidel to Pranna to make audio recordings and written reports of the music being publicly performed there on those nights. Mullaney Decl. ¶¶ 15, 17; see id. Exs. B-C.4 BMI later authorized John Davis, a “performance identification employee,” to review the recordings for BMI-licensed works. Mullaney Decl. ¶ 17; see id. Ex. O. Braunscheidel’s and Davis’s reports reveal that on May 17, 2014, “Suavemente” was performed by a DJ while Pranna was open to the public, and on October 11, 2014, “Suavemente,” “Billie Jean,” and “We Will Rock You” were publicly performed there. PI. 56.1, ¶¶ 12-13. Pranna was not licensed by BMI or any other plaintiffs to publicly perform any of these musical compositions on those dates. Id. ¶ 14. On May 20, 2014, October 14, 2014, and October 21, 2014, BMI sent defendants letters by FedEx and first class mail advising them of the investigations. Mulla-ney Decl. ¶¶ 16,18-19.

To date, Pranna has not obtained a license from any plaintiff, and continues to permit public performances of musical compositions at its establishment, PI. 56.1, ¶¶ 15-16, including, plaintiffs allege, songs licensed by BMI, Mullaney Decl. ¶ 24.

B. Procedural History

On March 17, 2015, plaintiffs filed a complaint, bringing three claims of copyright infringement against defendants. Dkt. 1. On May 21, 2015, defendants answered. Dkt. 11.

On July 24, 2015, plaintiffs served defendants with plaintiffs’ first set of requests for admission, interrogatories, and requests for production of documents. PI. 56.1, ¶ 1; see ]jOwer Decl., Exs. A-C. On August 14, 2015, defendants served plaintiffs with defendants’ first set of interrogatories and requests for production of documents. PL 56.1, ¶2. On September 16, 2015, plaintiffs responded to defendants’ discovery requests. Id. Discovery closed on October 16, 2015. Dkt. 15. To date, defendants have not responded to plaintiffs’ discovery requests. PI. 56.1, ¶ l.5

On December 9, 2015, plaintiffs filed a motion for summary judgment, Dkt. 21, as well as a memorandum of law in support, Dkt. 22 (“PI. Br.”). Plaintiffs also filed a Rule 56.1 Statement, PL 56.1; a declaration by plaintiffs’ counsel, Lower Decl.; a decía-[191]*191ration by BMI’s vice president for sales and licensing, Mullaney Decl.; and a declaration by BMI’s assistant vice president of legal affairs, Lloyd Decl. On December 16, 2015, defendants filed a brief in opposition. Dkt. 27 (“Defs. Br.”). On December 22, 2015, plaintiffs replied, Dkt. 28 (“PI. Reply Br.”), and filed a supplemental declaration by plaintiffs’ counsel, Dkt. 29 (“Lower Supp. Decl.”).

II. Legal Standards Applicable to Summary Judgment Motions

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Broadcast Music, Inc. v. Prana Hospitality, Inc., 158 F. Supp. 3d 184, 2016 U.S. Dist. LEXIS 7270, 2016 WL 280317 (S.D.N.Y. 2016).

158 F. Supp. 3d 184 (Broadcast Music, Inc. v. Prana Hospitality, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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