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GAIRA BAY, INC. v. AGUILAR

January 14, 2004.

GAIRA BAY, INC., BARNEGAT MUSIC CORP. AND SONY/ATV TUNES LLC, Plaintiffs -against- ALEJANDRO MARIO AGUILAR, Defendant


The opinion of the court was delivered by: JAMES LARSEN, Magistrate Judge

CONSENT JUDGMENT

WHEREAS, the Complaint in this action was filed by Gaira Bay, Inc., Barnegat Music Corporation and Sony/ATV Tunes LLC, ("Plaintiffs") on or about April 17, 2003, in the United States District Court for the Northern District of California, and served on Defendant Alejandro Mario Aguilar ("Aguilar") on or about May 6, 2003; and

  WHEREAS, Aguilar and/or Club Mango's, Inc. did at all times relevant to this action own, control, manage, operate or maintain a place of business for amusement and refreshment known as Mango's Sports Bar & Nightclub ("Mango's"), located at 39148 State Street, Fremont, California; and

  WHEREAS, Mango's is currently owned and operated by Club Mango's, Inc., as a result of which the parties hereby agree that Club Mango's, Inc. shall be, and hereby is, added as a party defendant to this action; and Page 2

  WHEREAS, Plaintiffs were, on the dates alleged on Schedule A to the Complaint, the respective owners of valid copyrights in the three songs listed on Schedule A to the Complaint; and

  WHEREAS, Plaintiffs allege that Defendants infringed Plaintiffs' copyrighted musical compositions, listed on Schedule A to the Complaint, at Mango's; and WHEREAS, Defendants deny any such infringement; and

  WHEREAS, Plaintiffs are all members of ASCAP and have authorized ASCAP to act on their behalf as attorney-in-fact; and

  WHEREAS, ASCAP, on behalf of Plaintiffs, and the Defendants have agreed that Plaintiffs' claims and all claims of any other members of ASCAP based on prior alleged unauthorized public performances of their copyrighted musical works at Mango's for all periods up to and including the date of entry of this judgment shall be settled on the bases set forth below;

  IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:

  1. (a) Defendants shall pay to ASCAP, on behalf of Plaintiffs, the sum of $11,500.00 ("the Settlement Amount") in settlement of the claims alleged in the Complaint and in payment of ASCAP license fees for Mango's for all periods through November 30, 2004.

  (b) The Settlement Amount set forth in paragraph 1(a) shall be paid in installments on the dates set forth below:
Payment Due Date Total Payment
January 15, 2004 $2,000.00
February 15, 2004 $2,000.00
March 15, 2004 $2,000.00
April 15, 2004 $1,000.00
October 31, 2004 $4,500.00
  TOTAL: $11,500.00 Page 3

  2. Defendants shall pay to ASCAP, 2960 Cumberland Parkway, Suite 490, Atlanta, Georgia 30339, Attention Diane Ussery, the amounts set forth in Paragraph 1(b) above. Defendants shall be considered in default if the monthly payments set forth in Paragraph 1(b) above are not received by ASCAP within ten (10) calendar days after a payment due date.

  3. Contemporaneously with the execution of this Consent Judgment, ASCAP shall offer, and Club Mango's, Inc. shall accept and execute, a license agreement for Mango's for the term beginning December 1, 2003. The Settlement Amount set forth in Paragraph 1(a) above includes license fees for Mango's of $1,118.00 for the period December 1, 2003 through November 30, 2004.

  4. (a) Defendants' October 31, 2004 payment of $4,500.00 shall be reduced by an amount that is equivalent to amounts paid to ASCAP as of that date by new licensees that obtain licenses from ASCAP based on either the advice of Aguilar or a joint ...


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