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Broadcast Music Inc. v. Hemingway'S Cafe, Inc.

United States District Court, D. New Jersey

June 28, 2017

BROADCAST MUSIC INC., et al., Plaintiffs,
HEMINGWAY'S CAFE, INC., d/b/a HEMINGWAY's CAFÉ, et al., Defendants.


          MARY L. COOPER United States District Judge

         Plaintiffs Broadcast Music, Inc., a “performing rights society” that licenses the rights to publicly perform copyrighted music on behalf of the copyright owners, and nine copyright owners have filed suit against Defendants Hemingway's Café, Inc., Marilyn Craparotta, and Vincent Craparotta, III, alleging ten acts of copyright infringement for publicly performing copyrighted music without a license. (Dkt. 1 at 2-6.)[1]

         Plaintiffs filed this motion for summary judgment seeking judgment in their favor on their copyright claims, statutory damages from Defendants jointly and severally, and attorney's fees and costs. (Dkt. 18.) We have considered all the filings, and resolve the matter without oral argument. See L.Civ.R. 78.1(b).

         For the following reasons, we will grant Plaintiffs' motion for summary judgment, enter judgment in their favor, and award statutory damages and reasonable attorney's fees and costs.


         Plaintiff Broadcast Music, Inc. (BMI) is a “performing rights society” that licenses, on behalf of the copyright owners, the right to publicly perform approximately 10.5 million copyrighted musical compositions. (Dkt. 18-16 at 1-2.) BMI obtains these rights from the copyright owners, which may be either the composer or the music publishing company. (Id.) BMI enters into “blanket license agreements” with various venues, such as restaurants, nightclubs, and concert halls, and grants them the right to stage performances of any of the musical compositions. (Id.)

         The other plaintiffs, Stone Diamond Music Corp., Songs of Universal, Inc., Chrysalis Standards, Inc., Dandelion Music Co., EMI Blackwood Music, Inc., Song A Tron Music, Sony/ATV Songs LLC, Sony/ATV Latin Music Publishing, and Universal Music-Z Tunes LLC, are the copyright owners of the specific musical compositions at issue in this litigation. (Dkt. 1 at 2-3; dkt. 18-16 at 1-3.)

         Defendant Hemingway's Café, Inc. (Hemingway's Café or Hemingway's) is a New Jersey corporation with a principal place of business in Seaside Heights. (Dkt. 18-2 at 2; dkt. 19-1 at 1.) Hemingway's advertised as a “20, 000-square-foot entertainment paradise” that is the “premiere nightlife venue at the Jersey Shore with live entertainment, some of the greatest local DJs and bands, and the largest dance floor at the Jersey Shore.” (Dkt. 18-2 at 3; dkt. 19-1 at 1.)

         Defendant Marilyn Craparotta is the President of Hemingway's Café, Inc. and she has a direct financial interest in the corporation. (Dkt. 18-2 at 4; dkt. 19-1 at 2.) In 2014, as President, Ms. Craparotta had the ability to direct and control the activities of Hemingway's and to supervise employees. (Dkt. 18-2 at 4; dkt. 19-1 at 2.)

         Defendant Vincent Craparotta, III has been the manager of Hemingway's Café since June 2010. (Dkt. 18-2 at 5; dkt. 19-1 at 2; dkt. 19-12 at 1; dkt. 22 at 2.) As manager, his responsibilities included “taking care of all the day to day operations” of Hemingway's, including “scheduling, overseeing ordering, booking entertainment, parties, arranging advertising, and overseeing operations whenever Hemingway's was open.” (Dkt. 18-2 at 5; dkt. 19-1 at 2.) In 2013, Mr. Craparotta was also an owner of Hemingway's, had a financial interest in the corporation, and had the right to direct and control the activities of Hemingway's and supervise employees. (Dkt. 18-2 at 5; dkt. 19-1 at 2.)

         As part of Hemingway's operation, Defendants allow musical compositions to be publicly performed at the venue. (Dkt. 18-2 at 2; dkt. 19-1 at 1.) Hemingway's advertises live music performances on its website and other social media pages. (Dkt. 18-2 at 2; dkt. 19-1 at 1.)

         From June 2010 until May 2016, Defendants did not have a license from BMI for the public performance of BMI-licensed musical compositions. (Dkt. 18-2 at 8; dkt. 19-1 at 2.) During this period, BMI began sending letters to Defendants advising them that a license was required to publicly perform musical compositions licensed by BMI and offering a license agreement. (Dkt. 18-2 at 3; dkt. 19-1 at 1.) BMI then sent letters instructing Defendants to cease and desist from any public performances of BMI-licensed music at Hemingway's. (Dkt. 18-2 at 3, 9; dkt. 18-9; dkt. 19-1 at 1, 3.)[2]

         The following ten BMI-licensed musical compositions were publicly performed at Hemingway's: “Technologic” on July 14, 2013; “Suavemente” on May 10, 2014; “Show Me Love” on May 11, 2014; and “Ain't Too Proud To Beg, ” “I Can't Help Myself, ” “It's Not Unusual, ” “Just My Imagination (Running Away with Me), ” “Put Your Head on My Shoulder, ” “Some Kind of Wonderful, ” and “Then You Can Tell Me Goodbye” on October 2, 2014. (Dkt. 18-2 at 6-8; dkt. 18-16 at 2; dkt. 18-17; dkt. 18-18; dkt. 18-19; dkt. 18-20; dkt. 18-21; dkt. 18-22; dkt. 18-23; dkt. 18-24; dkt. 18-25; dkt. 18-26; dkt. 19-1 at 2-3.) Mr. Craparotta booked the individuals who performed the music at Hemingway's on July 14, 2013, May 10, 2014, May 11, 2014, and October 2, 2014, and he was present at Hemingway's on each of these dates. (Dkt. 18-2 at 5; dkt. 19-1 at 2.)

         On September 11, 2015, Plaintiffs filed suit against Defendants alleging ten counts of copyright infringement and seeking the imposition of statutory damages. (Dkt. 1.)[3]Defendants did not enter into a licensing agreement with BMI until June 2016; the agreement was made retroactive to May 1, 2016. (Dkt. 18-2 at 4, 9; dkt. 19-1 at 2-3; dkt. 19-12 at 4; dkt. 22 at 3.)


         I. Summary Judgment

         A. Legal Standard

         Summary judgment is proper “if the movant shows that 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). The non-movant must then present evidence that raises a genuine dispute of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Material facts are those “that could affect the outcome” of the proceeding, and “a dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (internal citation and quotation omitted). This evidence may include “citing to particular parts of materials in the record” or a “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c).

         B. Analysis

         Our analysis proceeds in three parts. First, we assess whether Plaintiff's copyrighted music was infringed. Second, we discuss who can be held liable for the infringement. Third, we consider statutory damages. Based on the evidence presented, we conclude that ten musical compositions copyrighted by Plaintiffs were infringed, that Defendants Hemingway's Café, Inc., Marilyn Craparotta, and Vincent Craparotta, III are jointly and severally liable for those infringements, and that statutory damages should be awarded to Plaintiffs.

         1. Infringement

         To establish copyright infringement under the Copyright Act, a plaintiff must demonstrate: “(1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiff's work.” Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002). “Copying refers to the act of infringing any of the exclusive rights that accrue to the owner of a valid copyright, as set forth at 17 U.S.C. § 106, including the rights to distribute and reproduce copyrighted material.” Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 207 (3d Cir. 2005) (internal quotations omitted).

         With respect to infringement of a copyright based on unauthorized public performance of a musical composition, a plaintiff must demonstrate: “(1) originality and authorship of the composition; (2) compliance with the formalities of the Copyright Act; (3) proprietary rights in the work involved; (4) public performance of the composition involved for profit; and (5) lack of authorization for public performance.” Broad. Music, Inc. v. 84-88 Broadway, Inc., 942 F.Supp. 225, 229 (D.N.J. 1996); accord Broad. Music, Inc. v. Prana Hospitality, Inc., 158 F.Supp.3d 184, 191 (S.D.N.Y. 2016). ...

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