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Broadcast Music, Inc. v. PRRM Management Co., LLC

United States District Court, D. New Hampshire

June 17, 2019

Broadcast Music, Inc., et al.
v.
PRRM Management Co., LLC, d/b/a Jewel Nightclub; John M. Crosson

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone, United States Magistrate Judge

         Plaintiffs, 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 plaintiffs' motion.

         I. Standard of Review

         After 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[1][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).

         II. Background

         By 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.[1]

         Beginning 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 2018.[2]

         III. Discussion

         A. Infringement

         Under 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.

         To 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.

         B. Remedies

         Plaintiffs seek an injunction against future infringements, statutory damages, costs and attorneys' fees. The ...


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