United States District Court, N.D. California
J&N PUBLISHING L.L.C. D/B/A JUAN AND NELSON PUBLISHING, et al., Plaintiffs,
BLU ICE ENTERTAINMENT, L.L.C., et al., Defendants.
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
& RECOMMENDATION DOCKET NO. 19, 27
M.CHEN UNITED STATES DISTRICT JUDGE.
pending before the Court is Judge Laporte's report and
recommendation (“R&R”) on Plaintiffs'
motion for default judgment. See Docket No. 19
(motion); Docket No. 27 (R&R). Having considered the
papers submitted, including the supplemental briefing filed
by Plaintiffs, the Court hereby ADOPTS in
part and REJECTS in part the R&R.
respect to the issue of liability on the copyright
infringement claim, the Court finds Judge Laporte's
R&R thorough, well reasoned, and correct and therefore
agrees that Plaintiffs are entitled to a judgment in their
favor. The Court, however, does not agree with the relief
recommended by Judge Laporte.
the permanent injunction, the Court concludes that it should
extend only to “any copyrighted musical composition
owned by Plaintiffs, ” but not any copyrighted musical
composition in the ASCAP repertory. Docket No. 27 (R&R at
10). Plaintiffs correctly point out that there are a number
of district courts that have granted the broader injunction.
“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.” Controversy Music
v. Shiferaw, No. C02-5254-MJJ, 2003 U.S. Dist. LEXIS
15224, at *4-5 (N.D. Cal. July 7, 2003). But not all district
courts appear to have taken this approach. See Swallow
Turn Music v. Wilson, 831 F.Supp. 575, 581 (E.D. Tex.
1993) (noting that “some courts have only enjoined
performance of the particular songs sued upon, ” while
“other federal courts have enjoined defendants from
publicly performing any ASCAP members' music without
permission from the copyright owner or a license from
the rationale offered by those courts issuing the broader
injunction is problematic. Plaintiffs would not seem to have
standing to seek an injunction restraining the use of songs
for which they do not hold a copyright. If Plaintiffs are
supposed to be representatives, the instant case is not a
class action. ASCAP purports to represent Plaintiffs and
others like them, but ASCAP is not a party to this
from these problems, the Court is also troubled by the broad
injunction for case specific reasons. First, Plaintiffs have
pointed to infringement with respect to three songs only;
apparently, the ASCAP repertory contains “more than
11.5 million works and increases daily, as new works are
created and as new members join the society.” Docket
No. 31-1 (Jones Decl. ¶ 6). Second, Plaintiffs'
complaint seems to seek injunctive relief with respect to the
three songs only, not the entire ASCAP repertory.
See Compl., Prayer for Relief I (asking that
“Defendants and all persons acting under the direction,
control, permission or authority of Defendants be enjoined
and restrained permanently from publicly performing the
aforementioned compositions - or any of them - and from
causing or permitting the said compositions to be publicly
performed at Roccapulco, or at any place owned, controlled,
managed, or operated by Defendants, and from aiding or
abetting the public performance of such compositions in any
such place or otherwise”). Under Federal Rule of Civil
Procedure 54(c), “[a] default judgment must not differ
in kind from, or exceed in amount, what is demanded in the
pleadings.” Fed.R.Civ.P. 54(c).
damages, Judge Laporte recommended that Plaintiffs be awarded
$60, 000 in statutory damages. This would represent $20, 000
per infringed song, or two times the licensing fees that
Defendants would have paid if they had obtained a license for
the ASCAP repertory from October 2015 to the present.
See Docket No. 31-1 (Jones Decl. ¶ 20)
(explaining the calculation of fees for this period; total
fees would be approximately $33, 000). The Court recognizes
that the statutory damages requested falls within the range
contemplated by the Copyright Act. See 17 U.S.C.
§ 504(c) (providing that a copyright owner may elect
“an award of statutory damages for all infringements
involved in the action, with respect to any one work, . . .
in a sum of not less than $750 or more than $30, 000 as the
court considers just”; for willful infringement, the
statutory damages may be increased “to a sum of not
more than $150, 000”). The Court also acknowledges the
supplemental evidence provided by Plaintiffs to explain how
they calculated the licensing fees.
the Court is not persuaded that $60, 000 is a
“just” award. Id. In calculating the
licensing fees that Defendants “saved” or
avoided, Plaintiffs have assumed that Defendants infringed
for the entire period from October 2015 to the present. But
they have provided evidence of infringement on (in essence)
one night only. This is not to say that Defendants did not
commit additional infringements over the course of the
four-year period at issue. However, Plaintiffs have made no
attempt to show that this was in fact the case or that it may
reasonably be inferred that this was the case or likely the
case - especially if the infringement is narrowed to only
Plaintiffs' songs and not the broader ASCAP repertory.
Accordingly, the Court cannot credit Plaintiffs' claim
that Defendants saved or avoided approximately $33, 000 in
extent Plaintiffs contend that $20, 000 per infringement is
still a fair award based on case law, the cases Plaintiffs
have cited have varied, with the awards ranging from $10, 000
to $22, 500 per infringed song. Plaintiffs' request is on
the higher end. It is also on the higher end of §
504(c)(1), which sets the limit at $30, 000 (where no willful
infringement is proved). Plaintiffs have made no real attempt
to explain why an award on the higher end is warranted, other
than noting that Defendants have not fully paid on their
prior license and that Defendants were warned that, without a
license, it could not perform any songs in the ASCAP
on the record before the Court, the Court finds that a
statutory damages award of $45, 000 is appropriate. This
figure amounts to $15, 000 per infringed song. Fifteen
thousand dollars falls in the middle of the range of §
504(c)(1), as well as in the middle of the range with respect
to the cases on which Plaintiffs rely. An award in the middle
range is justified because it is fair to assume that each
infringed song had some level of popularity to
Defendants' customer base or it would not have been
played. An award on the higher end is not warranted,
particularly as Plaintiffs have pointed to infringement
occurring on (in essence) one night only. The Court also
notes that, even if Defendants did infringe throughout the
four-year period, an award of $45, 000 should still have a
deterrent effect given that the figure exceeds the $33, 000
licensing fees calculated by Plaintiffs.
the Court orders as follows.
• Plaintiffs' motion for default judgment is
• Defendants (including their officers, agents,
servants, employees, and attorneys) and those persons or
entities in active participation and concert with them are
permanently enjoined from publicly performing, or causing or
permitting to be publicly performed, in their business
establishment known as Roccapulco Supper Club, located at
3140 Mission St., San Francisco, California, or in any other