FILED NOT FOR PUBLICATION JAN 12 2012
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RANGE ROAD MUSIC, INC.; et al., No. 10-55691
Plaintiffs-counter-defendants D.C. No. 2:09-cv-02059-CAS- - Appellees, AGR
v. MEMORANDUM * EAST COAST FOODS, INC.; et al.,
Defendants-counter-claimants - Appellants.
RANGE ROAD MUSIC, INC.; et al., No. 10-55800
Plaintiffs-counter-defendants D.C. No. 2:09-cv-02059-CAS- - Appellees, AGR
v.
EAST COAST FOODS, INC.; et al.,
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding
Argued and Submitted December 9, 2011 Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**
Defendants-Appellants East Coast Foods, Inc. and Herbert Hudson
(collectively, “Defendants”) appeal the district court’s grant of summary judgment
in favor of Plaintiffs-Appellees (collectively, “Plaintiffs”) for eight counts of
copyright infringement, as well as the district court’s award of attorney’s fees and
costs to Plaintiffs. We affirm.
1. Defendants first argue that Plaintiffs’ original complaint was insufficient to
state a claim of vicarious liability for copyright infringement. One “infringes
vicariously by profiting from direct infringement while declining to exercise a right
to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S.
913, 930 (2005). Plaintiffs’ complaint contained “a short and plain statement of the
claim” of vicarious infringement. Conley v. Gibson, 355 U.S. 41, 47 (1957). The
complaint alleged “copyright infringement based on the defendants’ public
performances of copyrighted musical compositions,” and pleaded specific facts to
** The Honorable James P. Jones, United States District Judge for the Western District of Virginia, sitting by designation.
2 establish that the defendants exercised control over and financially benefitted from
the performance venue.
2. Defendants next argue that the district court should have excluded from
evidence the declaration and investigative report by Scott Greene that was the basis
of Plaintiffs’ case, because Greene was never certified as an expert witness.
The district court did not abuse its discretion by admitting Greene’s report
and declaration. Under Federal Rules of Evidence 601 and 701, Green’s report and
declaration contained his competent percipient witness testimony as a visitor to the
Sea Bird Jazz Lounge. Identifying popular songs does not require “scientific,
technical, or other specialized knowledge.” Fed. R. Evid. 702.
3. Defendants’ third argument is that Plaintiffs were required to prove
“substantial similarity” to prevail on their infringement claims.
To establish a prima facie case of copyright infringement, a plaintiff “must
demonstrate ‘(1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.’” Funky Films, Inc. v. Time Warner Entm’t
Co., 462 F.3d 1072, 1076 (9th Cir. 2006) (quoting Feist Pubs., Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361 (1991)). “The word ‘copying’ is shorthand for the
infringing of any of the copyright owner’s [six] exclusive rights,” one of which is
3 the right “to perform the copyrighted work publicly.” S.O.S., Inc. v. Payday, Inc.,
886 F.2d 1081, 1085 n.3 (9th Cir. 1989); see also 17 U.S.C. § 106(4).
“Substantial similarity” is thus not an element of a claim of copyright
infringement. Rather, it is a doctrine that helps adjudicate whether copying of the
“constituent elements of the work that are original” actually occurred when an
allegedly infringing work appropriates elements of an original without reproducing
it in toto. See Funky Films, 462 F.3d at 1076. A showing of “substantial similarity”
is irrelevant in a case like this one, where Plaintiffs produced evidence that the
copyrighted works themselves were performed.1
Because the ownership and validity of the copyrights at issue are not in
dispute, the only remaining question is whether Defendants raised a genuine issue
of material fact as to whether the copyrighted works were in fact publicly
performed.
Greene’s declaration and detailed investigative report were sufficient to
establish that the works were publicly performed. He testified that the live band he
saw perform at the Sea Bird Jazz Lounge introduced the songs they were playing
1 Both the tracks played from the compact disc player and the compositions played by the live band were “performed” as that term is used in the Copyright Act. “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process.” 17 U.S.C. § 101.
4 as Coltrane standards and proceeded to play them. He further testified that he saw a
disc jockey play four tracks from a compact disc of Hiroshima songs, the titles of
which he obtained from the jewel case lying next to the compact disc player. All of
this evidence was completely uncontradicted by Defendants, who proffered no
evidence tending to contradict Greene’s testimony that the eight copyrighted
compositions at issue were publicly performed at the Sea Bird Jazz Lounge on the
night he visited the venue.
The district court was correct to hold that Greene’s uncontested declaration
was sufficient to establish that no genuine issue of material fact existed as to
whether copyright infringement occurred at the Sea Bird Jazz Lounge.
4. Defendants next argue that neither East Coast Foods, Inc. nor Herbert
Hudson can be held liable for vicarious infringement, because the Sea Bird Jazz
Lounge and the adjoining Long Beach branch of Roscoe’s House of Chicken and
Waffles are owned by an independent corporate entity called Shoreline Foods.
To impose vicarious liability on a defendant for copyright infringement, “a
plaintiff must establish that the defendant exercises the requisite control over the
direct infringer and that the defendant derives a direct financial benefit from the
direct infringement.” Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 729 (9th
Cir. 2007). A defendant “exercises control over a direct infringer when he has both
5 a legal right to stop or limit the directly infringing conduct, as well as the practical
ability to do so.” Id. at 730.
Overwhelming evidence showed that East Coast Foods and Herbert Hudson
exercised control over both the Long Beach Roscoe’s and the Sea Bird Jazz
Lounge, and derived a financial benefit from the musical performances in the
lounge.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION JAN 12 2012
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RANGE ROAD MUSIC, INC.; et al., No. 10-55691
Plaintiffs-counter-defendants D.C. No. 2:09-cv-02059-CAS- - Appellees, AGR
v. MEMORANDUM * EAST COAST FOODS, INC.; et al.,
Defendants-counter-claimants - Appellants.
RANGE ROAD MUSIC, INC.; et al., No. 10-55800
Plaintiffs-counter-defendants D.C. No. 2:09-cv-02059-CAS- - Appellees, AGR
v.
EAST COAST FOODS, INC.; et al.,
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding
Argued and Submitted December 9, 2011 Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**
Defendants-Appellants East Coast Foods, Inc. and Herbert Hudson
(collectively, “Defendants”) appeal the district court’s grant of summary judgment
in favor of Plaintiffs-Appellees (collectively, “Plaintiffs”) for eight counts of
copyright infringement, as well as the district court’s award of attorney’s fees and
costs to Plaintiffs. We affirm.
1. Defendants first argue that Plaintiffs’ original complaint was insufficient to
state a claim of vicarious liability for copyright infringement. One “infringes
vicariously by profiting from direct infringement while declining to exercise a right
to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S.
913, 930 (2005). Plaintiffs’ complaint contained “a short and plain statement of the
claim” of vicarious infringement. Conley v. Gibson, 355 U.S. 41, 47 (1957). The
complaint alleged “copyright infringement based on the defendants’ public
performances of copyrighted musical compositions,” and pleaded specific facts to
** The Honorable James P. Jones, United States District Judge for the Western District of Virginia, sitting by designation.
2 establish that the defendants exercised control over and financially benefitted from
the performance venue.
2. Defendants next argue that the district court should have excluded from
evidence the declaration and investigative report by Scott Greene that was the basis
of Plaintiffs’ case, because Greene was never certified as an expert witness.
The district court did not abuse its discretion by admitting Greene’s report
and declaration. Under Federal Rules of Evidence 601 and 701, Green’s report and
declaration contained his competent percipient witness testimony as a visitor to the
Sea Bird Jazz Lounge. Identifying popular songs does not require “scientific,
technical, or other specialized knowledge.” Fed. R. Evid. 702.
3. Defendants’ third argument is that Plaintiffs were required to prove
“substantial similarity” to prevail on their infringement claims.
To establish a prima facie case of copyright infringement, a plaintiff “must
demonstrate ‘(1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.’” Funky Films, Inc. v. Time Warner Entm’t
Co., 462 F.3d 1072, 1076 (9th Cir. 2006) (quoting Feist Pubs., Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361 (1991)). “The word ‘copying’ is shorthand for the
infringing of any of the copyright owner’s [six] exclusive rights,” one of which is
3 the right “to perform the copyrighted work publicly.” S.O.S., Inc. v. Payday, Inc.,
886 F.2d 1081, 1085 n.3 (9th Cir. 1989); see also 17 U.S.C. § 106(4).
“Substantial similarity” is thus not an element of a claim of copyright
infringement. Rather, it is a doctrine that helps adjudicate whether copying of the
“constituent elements of the work that are original” actually occurred when an
allegedly infringing work appropriates elements of an original without reproducing
it in toto. See Funky Films, 462 F.3d at 1076. A showing of “substantial similarity”
is irrelevant in a case like this one, where Plaintiffs produced evidence that the
copyrighted works themselves were performed.1
Because the ownership and validity of the copyrights at issue are not in
dispute, the only remaining question is whether Defendants raised a genuine issue
of material fact as to whether the copyrighted works were in fact publicly
performed.
Greene’s declaration and detailed investigative report were sufficient to
establish that the works were publicly performed. He testified that the live band he
saw perform at the Sea Bird Jazz Lounge introduced the songs they were playing
1 Both the tracks played from the compact disc player and the compositions played by the live band were “performed” as that term is used in the Copyright Act. “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process.” 17 U.S.C. § 101.
4 as Coltrane standards and proceeded to play them. He further testified that he saw a
disc jockey play four tracks from a compact disc of Hiroshima songs, the titles of
which he obtained from the jewel case lying next to the compact disc player. All of
this evidence was completely uncontradicted by Defendants, who proffered no
evidence tending to contradict Greene’s testimony that the eight copyrighted
compositions at issue were publicly performed at the Sea Bird Jazz Lounge on the
night he visited the venue.
The district court was correct to hold that Greene’s uncontested declaration
was sufficient to establish that no genuine issue of material fact existed as to
whether copyright infringement occurred at the Sea Bird Jazz Lounge.
4. Defendants next argue that neither East Coast Foods, Inc. nor Herbert
Hudson can be held liable for vicarious infringement, because the Sea Bird Jazz
Lounge and the adjoining Long Beach branch of Roscoe’s House of Chicken and
Waffles are owned by an independent corporate entity called Shoreline Foods.
To impose vicarious liability on a defendant for copyright infringement, “a
plaintiff must establish that the defendant exercises the requisite control over the
direct infringer and that the defendant derives a direct financial benefit from the
direct infringement.” Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 729 (9th
Cir. 2007). A defendant “exercises control over a direct infringer when he has both
5 a legal right to stop or limit the directly infringing conduct, as well as the practical
ability to do so.” Id. at 730.
Overwhelming evidence showed that East Coast Foods and Herbert Hudson
exercised control over both the Long Beach Roscoe’s and the Sea Bird Jazz
Lounge, and derived a financial benefit from the musical performances in the
lounge. The Sea Bird Jazz Lounge displays on its premises a liquor license owned
by East Coast Foods. Hudson, who is the president of both East Coast Foods and
Shoreline Foods, testified that he has managerial authority over the Long Beach
Roscoe’s, including the power to hire and fire employees and the power to prevent
acts from appearing at the Sea Bird Jazz Lounge. The manager of the Long Beach
Roscoe’s, Cuahtemoc Rodriguez, testified that his paychecks are issued by East
Coast Foods and that he buys alcohol for both the restaurant and the lounge area.
By contrast, Defendants’ only evidence that they are not proper defendants is
Hudson’s unsubstantiated and self-serving declaration that he has never owned the
Long Beach Roscoe’s.
Because no genuine issue of material fact exists as to whether East Coast
Foods and Hudson controlled and derived financial benefit from the infringing
performances in the Sea Bird Jazz Lounge, the district court was correct to hold
6 that Hudson and East Coast Foods, Inc. were vicariously liable for copyright
infringement.
5. Defendants finally argue that the district court’s award of attorney’s fees and
costs to Plaintiffs was an abuse of discretion.
The Copyright Act empowers courts to “award a reasonable attorney’s fee to
the prevailing party as part of the costs” in infringement cases. 17 U.S.C. § 505. In
awarding such fees, “district courts are given wide latitude to exercise ‘equitable
discretion.’” Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d
1211, 1229 (9th Cir. 1997).
The district court identified and applied the correct legal standard,
thoroughly considered both parties’ arguments, and articulated a reasoned
explanation for its fee award. Defendants could have avoided liability by
purchasing a valid license at any point during the seven years in which the
American Society of Composers, Authors, and Publishers importuned them to do
so. Moreover, much of the fees and costs were occasioned by Defendants’ own
obfuscation of the corporate structure of Roscoe’s. The district court did not abuse
its discretion in awarding fees and costs to Plaintiffs.
AFFIRMED.