United States District Court, D. New Hampshire
Broadcast Music, Inc., et al.
PRRM Management Co., LLC, d/b/a Jewel Nightclub; John M. Crosson
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge
holders of legal rights in copyrighted musical compositions,
filed this copyright infringement action against the owner
and operator of a Manchester, New Hampshire club, alleging
that the club used the copyrighted material without a license
or permission. See 17 U.S.C. § 101 et seq. (“the
Copyright Act”). The defendants have defaulted. Doc.
No. 17. Plaintiffs' unopposed motion for default judgment
(Doc. No. 19) is before the undersigned magistrate judge for
a report and recommendation. See Fed.R.Civ.P. 55(b)(2). For
the reasons that follow, the district judge should grant
Standard of Review
default is entered and when, as here, the amount at issue is
not a sum certain, “the party must apply to the court
for a default judgment.” Fed.R.Civ.P. 55(b)(2); see
also KPS & Assocs., Inc. v. Designs by FMC, Inc.,
318 F.3d 1, 18-19 (1st Cir. 2003). “Although a
defaulting party admits the factual basis of the claims
asserted against it, the defaulting party does not admit the
legal sufficiency of those claims.” 10 James Wm. Moore,
Moore's Federal Practice § 55.32[b] (3d ed.
2013). Before entering default judgment, the court must
determine whether “[t]he claimant [has] state[d] a
legally valid claim for relief.” Id.; see also
Ramos-Falcon v. Autoridad de Energia Electrica, 301
F.3d 1, 2 (1st Cir. 2002).
virtue of their default, defendants have admitted the
following facts, as set forth in the complaint. Doc. No. 1.
Plaintiff Broadcast Music, Inc. (“BMI”) has been
granted the right to license the public performance rights in
millions of copyrighted musical compositions, including those
at issue in this case. The remaining plaintiffs are the
owners of the copyrighted music in this matter. Defendant
PRRM Management, LLC (“PPRM”), operates,
maintains and controls the Jewel Nightclub
(“Jewel”) in Manchester, New Hampshire. In
operating Jewel, PRRM publicly performs musical compositions
and/or causes musical compositions to be publicly performed.
Defendant John M. Crosson, a PRRM manager, is responsible for
Jewel and PRRM's operation and management.
in March 2017, BMI contacted PRRM over thirty times, by
phone, mail and email, with respect to the necessity of
purchasing a license for the public performance of musical
compositions BMI licensed. BMI's correspondence included
cease and desist notices, warning PRRM that it must
immediately cease all use of BMI-licensed music in Jewel.
Plaintiffs assert four claims of willful copyright
infringement, based upon PRRM's unauthorized public
performance of BMI-licensed music during April
the Copyright Act, copyright owners possess the exclusive
rights to authorize public performance of their musical
compositions. The violation of this right constitutes
infringement. 17 U.S.C. §§ 106, 501(a). The owners
of a copyright may protect their interest by bringing a
private action for infringement occurring while they are the
owner of the copyright. Id. at § 501(b).
Copyright owners may seek an injunction against future
infringement, statutory damages, costs, and attorney fees.
Id. at §§ 502, 504(c), 505.
establish a case of copyright infringement based on a public
performance “a plaintiff must demonstrate (1)
originality and authorship of the work involved; (2)
compliance with all formalities required to secure a
copyright under the Act; (3) plaintiff's ownership of the
copyright in question; (4) public performance of the work;
and (5) lack of authorization for the performer to perform
the work.” Broad. Music, Inc. v. Rindge Land
Corp., No. Civ. 93-460-JD, 1995 WL 136940, at *4 (D.N.H.
March 27, 1995). Given the admissions inherent in
defendants' default, the court finds that the plaintiffs
have successfully established their infringement claims.
seek an injunction against future infringements, statutory
damages, costs and attorneys' fees. The ...