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MUSIC CO., INC. v. SHIFERAW

July 7, 2003

MUSIC CO., INC., BLACK BULL MUSIC INC., PLAINTIFFS,
v.
AGONAFER SHIFERAW, DEFENDANT



The opinion of the court was delivered by: Martin Jenkins, District Judge

CORRECTED ORDER GRANTING PLAINTIFFS' APPLICATION FOR DEFAULT JUDGMENT
INTRODUCTION

Before the Court is Controversy Music, et. al.'s application for judgment by default. Plaintiffs seek injunctive relief, statutory damages in the amount of $30,000 for four violations of the Copyright Act, and attorney's fees and costs totaling $6,731 against defendant Agonafer Shiferaw. As defendant has failed to answer, appear, or otherwise defend the action, and as default has already been entered by the Clerk, the application for default judgment is GRANTED.

FACTUAL BACKGROUND

Plaintiffs are music publishers and members of ASCAP, the American Society of Composers, Authors, and Publishers. Plaintiffs have granted ASCAP a non-exclusive right to license nondramatic public performances of their copyrighted works. Pursuant to license [ Page 2]

agreements, ASCAP collects license fees that are then distributed as royalties to its members. Defendant is the owner and operator of Rassela's Jazz Club & Restaurant, located at 1534 Fillmore Street in San Francisco, and plaintiffs allege that he has performed ASCAP songs without permission. Beginning in December 1999, ASCAP approached defendant numerous times to secure a licensing agreement, but defendant rebuffed these attempts. Believing that defendant was performing copyrighted songs without permission, ASCAP sent an investigator to Rassela's on May 24, 2002. The investigator's report indicates that four songs within the ASCAP library were performed by a band or disk jockey: "Kiss," "Trench Town Rock," "I Wish," and "Superstition."

On October 30, 2002, plaintiffs filed a complaint against defendant, which was duly served upon defendant on November 15, 2002 via personal service. Defendant has failed to answer the complaint, appear in the action, or pursue a defense in any way, and the Clerk of the Court entered default on December 23, 2002.

Plaintiffs seek an injunction prohibiting further unauthorized performances of works within the ASCAP repertory, statutory damages in the amount of $7,500 per song, and attorneys fees and costs, pursuant to the Copyright Act, 17 United States Code §§ 502(a), 504(c) (1), and 505.

ANALYSIS

Rule 55(b) (2) of the Federal Rules of Civil Procedure provides that judgment by default may be entered by the Court. "The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (quoting Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)).

Accepting the allegations of infringement as true, the Court must consider the nature of the relief requested. As codified in 17 U.S.C. § 502, the Copyright Act clearly provides for the issuance of an injunction to restrain the infringement of a copyright. In this case, plaintiffs have advanced claims that defendant violated the copyrights they held in four works, but seek an injunction against defendant's unauthorized performance of any ASCAP-licensed music. Plaintiffs cite a number of cases, often in the posture of a grant of default judgment, in which such injunctions were issued. See Cross Keys Publishing Co., Inc. v. Wee, Inc., 921 F. Supp. 479, 481 (W.D.Mich. 1995); Jobete Music Co., Inc. v. Hampton, [ Page 3]

864 F. Supp. 7, 9 (S.D.Miss. 1994), Brockman Music v. Miller, G 89-40650 CA, 1990 WL 132486 at *2 (W.D.Mich. 1990); Brockman Music v. Mass. Bay Lines, 7 U.S.P.Q.2d 1089, 1091 (W.D.Mass. 1988). The rationale behind the broad injunction against performance of all ASCAP songs is that plaintiffs in cases such as the one presently before the Court represent all ASCAP members, and thus, an injunction encompassing all ASCAP works is an appropriate remedy.*fn1

The Court finds this reasoning persuasive, and orders that defendant is permanently enjoined from publicly performing, or causing or permitting the public performance of, the music compositions "Kiss," "Trench Town Rock," "I Wish," "Superstition," or any musical composition licensed through the American Society of Composers, Authors, and Publishers in any premises owned, controlled, or conducted by the defendant, and from aiding or abetting the public performance of said compositions, without license to so perform or have performed.

Plaintiffs also request statutory damages in the amount of $30,000, which represents an award of $7,500 per song. This request is made pursuant to 17 U.S.C. § 504(c) (2), which governs damages in cases of willful infringement. Plaintiffs base their allegation of willfulness on the fact that in their efforts to secure a licensing agreement representatives from ASCAP initiated more than 80 separate contacts with defendant. (Declaration of Bonnie King ISO Application for Default Judgment ("King Decl.") ¶ 8.) These contacts were by phone and letter, and often included a sample licensing agreement and informational material, all of which were designed to inform defendant of the need to secure a license with ASCAP in order to perform their works lawfully. (Id.) Plaintiffs also point to licensing agreements between ASCAP and defendant for another jazz club he owned: Razzela's on California Street in San Francisco. Unauthorized performance of ASCAP songs at the latter establishment led to an earlier suit for copyright infringement in this Court, Jobete Music Co., Inc. v. Agonafer Shiferaw, C 98-4158 CRB. This suit was resolved in a settlement through which defendant and ASCAP entered into a license agreement for the California Street club, starting on January 1, 1999. (Id. ¶ 7.)

As the Copyright Act makes clear, an award of damages is within the discretion of the Court. See 17 U.S.C. ยง 504(c). Factors the Court can consider in determining ...


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