United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff Broadcast Music, Inc seeks summary judgment against Angela Marie Crawford, individually and doing business as McMurphy's Irish Pub ("Defendant"). (Doc. 35.) Defendant filed her opposition to the motion on February 21, 2014 (Doc. 37), to which BMI filed a reply on February 27, 2014 (Doc. 45). For the following reasons, BMI's motion for summary judgment is GRANTED.
I. Factual and Procedural History
BMI; Stone Diamond Music Corp.; Sony/ATV Songs LLC, doing business as Sony ATV Tree Publishing; EMI Virgin Songs, Inc.; MJ Twelve Music; Welsh Witch Music; Moebetoblem Music; and E.O. Smith Music initiated this action by filing a complaint on November 19, 2012. (Doc. 1.) BMI "is a performing rights society' which licenses the right to publicly perform copyrighted musical compositions works on behalf of the copyright owners of these works." (Doc. 35 at 9); see also 17 U.S.C. § 101 (defining "performing rights society" as "an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc."). The non-BMI plaintiffs alleged that they are owners of the copyrights for the songs "Ain't Too Proud to Beg, " "Crazy, " "Everlong, " "Landslide, " "Breaking the Girl, " and "Keep Fishin, '" and that these songs were publicly performed "without a license or permission to do" so at McMurphy's Irish Pub. (Doc. 1 at 3, 5; Doc. 1-1 at 1-3.)
BMI's Licensing Assistant Vice President, Lawrence Stevens, reports that "BMI routinely sends to the proprietors of establishments where music is publicly performed license agreements and information explaining the need to obtain permission from copyright owners in order to lawfully publicly perform copyrighted music in their establishment." (Doc. 35-13, Stevens Decl. ¶ 2.) He reports that BMI learned musical entertainment was offered at McMurphy's Irish Pub, and "[o]n November 4, 2011, BMI sent a letter to the establishment and advised that a license was required." ( Id., ¶ 3.) A brochure and BMI license agreement were enclosed with the letter. ( Id. ) It is undisputed that Ms. Crawford did not respond to this letter, and "[b]etween November 2011 and September 2012, BMI repeatedly offered to license the public performance of musical compositions at McMurphy's Irish Pub and notified Defendant repeatedly by letters and telephone calls that the performance of musical compositions in which BMI owns the public performance rights, without a license, infringed BMI's rights under the Copyright laws." (UMF 14; Stevens Decl. ¶¶ 5-6.) Defendant does not dispute that the letters or phone calls were made, but asserts she did not become the owner of the pub until March 2012. (Doc. 40 at 2, Crawford Decl. ¶ 2.)
After Defendant failed to enter a license agreement with BMI, the company dispatched an investigator, Stanley Joseph, "to visit McMurphy's Irish Pub and make an audio recording and written report of the music being publicly performed" on May 26, 2013 and July 7, 2013. (UMF 17; Stevens Decl. ¶¶ 9-10.) The audio recordings were submitted to BMI employees "to review the recordings to identify any additional recorded musical works as well as to identify additional live performances." (Stevens Decl ., ¶¶ 11-12.) The BMI employees identified performances of "Breaking the Girl, " "Ain't Too Proud To Beg, " "Everlong, " "Keep Fishin', " and "Landslide." ( Id. ) Mr. Joseph's recording was submitted for digital review, which confirmed performances of "Everlong" and "Crazy." ( Id. at ¶ 13.)
According to BMI, "The other plaintiffs - Stone Diamond Music Corp., Sony/ATV Songs LLC d/b/a Sony ATV Tree Publishing, EMI Virgin Songs, Inc., MJ Twelve Music, Welsh Witch Music, Moebetoblem Music, and E.O. Smith Music - are the copyright owners" of the songs "Ain't Too Proud to Beg, " "Crazy, " "Everlong, " "Landslide, " "Keep Fishin'" and "Breaking the Girl, " which were played at McMurphy's Irish Pub without a license. (Doc. 35 at 9-10.)
II. Legal Standards for Summary Judgment
The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Accordingly, summary judgment should be entered "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the "initial responsibility" of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A moving party demonstrates summary judgment is appropriate by "informing the district court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)).
If the moving party meets its initial burden, the burden then shifts to the opposing party to present specific facts that demonstrate there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsuhita, 475 U.S. at 586. An opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586, n.11; Fed.R.Civ.P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, "failure of proof concerning an essential element of the... case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed "in the light most favorable to the nonmoving party" and "all justifiable inferences" must be drawn in favor of the nonmoving party. Orr, 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
III. Evidentiary Objections
Defendant objects to the evidence identified as "Exhibit B, " attached to the declaration of Hope Lloyd. (Doc. 44 at 1.) According to Defendant, the evidence contained in Exhibit B should not be considered because it has not been properly authenticated as required by Rules 901 and 902 of the Federal Rules of Evidence. ( Id. )
Authentication of documents "is a condition precedent to admissibility, ' and this condition is satisfied by evidence sufficient to support a finding that the matter in question its proponent claims.' Orr, 285 F.3d at 773 (quoting Fed.R.Evid. 901(a)). The Ninth Circuit has "repeatedly held that unauthenticated documents cannot be considered on a motion for summary judgment." Id. (citing, e.g., Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550-51 (9th Cir. 1990); Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)). Documents that are authenticated through personal knowledge must be attached to a declaration that satisfies the requirements of Rule 56(e), and the declarant must be one through whom the exhibits could be admitted into evidence. Id. at 773-74 (citing Canada, 831 F.2d at 925).
Here, Ms. Lloyd reports she been the Assistant Vice President, Legal of Broadcast Music, Inc. since 2012. (Doc. 35-8 at 2, Lloyd Decl. ¶ 1.) She asserts that BMI enters "agreements with copyright owners such as music publishing companies and composers, " through which the company "acquires non-exclusive public performance rights." ( Id., ¶ 2.) According to Ms. Lloyd, "The affiliation agreements are made in the ordinary course of business by persons who have a duty to BMI to accurately make and maintain such agreement, " and "[t]he records are made at or near the time of the occurrence of the events which they reflect." ( Id. ) Ms. Lloyd asserts, under penalty of perjury, that Exhibit B to her declaration contains "[t]rue and correct copies of the certificates and subsequent documentation relating to the chain of ownership of the musical compositions and the affiliations with BMI." ( Id. at 3, ¶ 4.) Specifically, Ms. Lloyd reports Exhibit B includes "true and correct copies of official Copyright Office records and copies of documentation made and kept in the ordinary course of Plaintiffs' business." ( Id. )
These statements are sufficient to demonstrate Ms. Lloyd has personal knowledge of the documents and that she is capable of authenticating them. Accordingly, Defendant's objection to the evidence identified as ...