United States District Court, D. Nebraska
BROADCAST MUSIC, INC.; DEL SOUND MUSIC; MJ PUBLISHING TRUST; RIO BRAVO MUSIC, INC.; SONY/ATV SONGS LLC; BIG YELLOW DOG, LLC; TOKECO TUNES; WARNER-TAMERLANE PUBLISHING CORP.; EMI BLACKWOOD MUSIC, INC.; OLE MEDIA MANAGEMENT, LP and INDIANA ANGEL MUSIC, Plaintiffs,
HILBURN ENTERPRISES, INC. and JACK HILBURN, Defendant.
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
case arises from the reportedly unauthorized playing of six
musical compositions at Bourbon Jack's Honkytonk Bar
(“Bourbon Jack's”) in Hastings, Nebraska.
Broadcast Music, Inc. (“BMI”), the holder of the
right to license performances of those compositions, and Del
Sound Music, MJ Publishing Trust, Rio Bravo Music, Inc.,
Sony/ATV Songs LLC, Big Yellow Dog, LLC, Tokeco Tunes,
Warner-Tamerlane Publishing Corp., EMI Blackwood Music, Inc.,
Ole Media Management, LP, and Indiana Angel Music
(collectively, “plaintiffs”), owners of those
compositions, sued Hilburn Enterprises, Inc. (“Hilburn
Enterprises”) and Jack Hilburn
(“Hilburn”) for copyright infringement pursuant the
Copyright Act, 17 U.S.C. § 101 et. seq. Now
pending before the Court is the plaintiffs' Motion for
Default Judgment (Filing No. 44) pursuant to Federal Rule of
Civil Procedure 55(b)(2) against Hilburn Enterprises. The
plaintiffs' Motion for Default Judgment is granted in
part as set forth below.
is the president of Hilburn Enterprises, which owns and
operates Bourbon Jack's. At the bar, Hilburn Enterprises
played music contained in BMI's repertoire without a
license to do so. Once BMI learned of this, it began
contacting Hilburn Enterprises in an attempt to inform it of
the need to obtain a license to play BMI's music as
required by the Copyright Act. Beginning in 2014, BMI
attempted to contact Hilburn Enterprises at least seventy
times through various forms of communication, including
cease-and-desist notices. Hilburn Enterprises failed to
respond to any of these communications and continued to play
music owned by plaintiffs without authorization.
March 6, 2017, the plaintiffs sued Hilburn Enterprises based
on its unauthorized public performance of six musical
compositions from BMI's repertoire in 2016 in violation
of the Copyright Act. The plaintiffs served Hilburn
Enterprises with a summons and a copy of the Amended
Complaint. When Hilburn Enterprises “failed to plead or
otherwise defend” this action, Fed.R.Civ.P. 55(a), the
Clerk of the Court, upon the plaintiffs' motion, entered
the defendants' default (Filing No. 35). The plaintiffs
now move the Court for default judgment pursuant to Rule
55(b)(2). The plaintiffs submitted a Brief in Support of
Motion for Default Judgment along with several exhibits,
including (1) affidavits from BMI's in-house counsel, and
its vice president of sales and licensing;(2) written reports
of Raquel Telfer, an authorized agent of BMI who witnessed
the performance of copyrighted songs; and (3) a declaration
from BMI's counsel regarding fees and costs. Hilburn
Enterprises was sent notice of the plaintiffs' Motion but
failed to respond.
plaintiffs filed their Complaint on March 6, 2017, and later
amended their complaint as a matter of course pursuant to
Federal Rule of Civil Procedure 15(a). Hilburn Enterprises
failed to respond to either filing. Where a party fails to
file a responsive pleading or otherwise defend, default
judgment will be entered. Fed.R.Civ.P. 55(a). It remains
“for the court to consider whether the unchallenged
facts constitute a legitimate cause of action.”
Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010). A
plaintiff requesting default judgment must still prove its
damages. Cutcliff v. Reuter, 791 F.3d 875, 883 (8th
the Copyright Act, the right to permit public performances of
copyrighted works lies with the copyright owners. 17 U.S.C.
§ 106(4). BMI has the right to permit public
performances of various owners' music by way of blanket
licensing agreements. See Broad. Music, Inc. v. Columbia
Broad. Sys., Inc., 441 U.S. 1 (1979) (discussing
licensing agreements). The Copyright Act further provides
that “Anyone who violates any of the exclusive rights
of the copyright owner as provided in Sections 106 through
122 . . . is an infringer of the copyright.” 17 U.S.C.
§ 501(a). The Copyright Act authorizes an aggrieved
party to seek injunctive relief to prevent copyright
infringement. Id. § 502(a). A prevailing party
may elect to recover statutory damages in a sum no less than
$750 and not to exceed $30, 000 per infringement, instead of
actual damages. Id. § 504(c)(1). If a court
finds the “infringement was committed willfully, the
court in its discretion may increase the award of statutory
damages to a sum of not more than $150, 000.”
Id. § 504(c)(2). Moreover, a prevailing party
may request attorney fees and costs. Id. § 505.
plaintiffs seek judgment as aggrieved parties under §
501(a) because Hilburn Enterprises willfully performed
copyrighted musical compositions without authorization. The
plaintiffs also request permanent injunctive relief pursuant
to 17 U.S.C. § 502(a). The Copyright Act permits courts
to “grant temporary and final injunctions on such terms
as it may deem reasonable to prevent or restrain infringement
of a copyright.” 17 U.S.C. § 502(a). “In
copyright actions, courts traditionally have been willing to
grant permanent injunctions once liability is established and
a continuing threat to the copyright exists.”
Nat'l Football League v. McBee & Bruno's,
Inc., 792 F.2d 726, 732 (8th Cir. 1986) (citing
Pacific & S. Co., Inc. v. Duncan, 744 F.2d 1490,
1499 (11th Cir. 1984)). In the present case, Hilburn
Enterprises's documented violations date back to 2014.
The plaintiffs gave Hilburn Enterprises multiple
opportunities to cure the violation before resorting to
litigation, and Hilburn Enterprises ignored and continues to
ignore the plaintiffs' communications and this lawsuit.
Further, Hilburn Enterprises has not given this Court any
reason to believe it will cease violating the Copyright Act.
Therefore, the Court grants the plaintiffs' request for
permanent injunctive relief.
Court turns next to damages. Here, the plaintiffs have
requested statutory damages as opposed to actual damages as
allowed pursuant to 17 U.S.C. § 504(c)(1). Section
504(c)(1) provides for statutory damages in a sum no less
than $750 and no more than $30, 000 per infringement. The
plaintiffs have requested statutory damages of $5, 000 for
the unauthorized broadcast of each of the six musical
compositions for a total of $30, 000.
careful review, the Court finds the plaintiffs' requested
damages are reasonable. See, e.g.,
Capital Records, Inc. v. Thomas-Rasset, 692 F.3d
899, 908 (8th Cir. 2012) (finding a statutory award of $9,
250 for each of the twenty-four infringed works was
reasonable). As noted, Hilburn Enterprises has been a steady
infringer despite repeated notice from the plaintiffs.
Beginning in 2014, the plaintiffs contacted Hilburn
Enterprises dozens of times by phone and mail in an attempt
to stop the infringement-to no avail. Hilburn refused to
obtain a license or discontinue playing the plaintiffs'
songs at its business. The estimated licensing fee for the
period at issue in this case is approximately $3, 500 per
year. See, e.g., Gnat Booty Music v.
Creative Catering of Wadhams, LLC, 761 F.Supp.2d 604,
609 (E.D. Mich. 2011) (noting “courts have routinely
ordered damages well in excess of-and typically approximately
three times the amount the defendant would have paid if it
had properly obtained a license); Dream Dealers Music v.
Parker, 924 F.Supp. 1146, 1153 (S.D. Ga. 1996) (granting
an award three times the total cost of the licensing
agreement); Broad. Music, Inc. v. Triple L Vending,
Inc., No. SA-86-CA-754, 1987 WL 45244, at *4 (W.D. Tex.
Aug. 14, 1987) (same). Under the circumstances of this case,
the Court awards the plaintiffs damages in the amount of $5,
000 for each of the six infringed upon compositions.
plaintiffs additionally request attorney fees and costs as
provided for in 17 U.S.C. § 505. In support of their
request, the plaintiffs submitted a declaration of their
attorney. The declaration stated $7, 500 in attorney fees
have been incurred, in addition to $437.50 in total
out-of-pocket costs including filing and service fees
totaling $7, 500. (Filing No. 47-3). The Court grants $437.50
plaintiffs' attorney fee declaration fails to provide
information regarding hourly billing rates or the amount of
time spent on this case to enable the Court to calculate a
lodestar. Without this information, the Court is unable to
determine whether such fees are reasonable. The Court will
allow the plaintiffs time to ...